Land and Environment Court of New South Wales CITATION : Lonergan v Byron Shire Council [2005] NSWLEC 682 Applicant: Chris Lonergan & Associates PARTIES : Respondent: Byron Shire Council FILE NUMBER(S) : 10493 of 2005 CORAM: Roseth SC Development Application :- amendment of consent under s96 of the Environmental Planning and Assessment Act 1979 KEY ISSUES: extinguishment of right-of-carriageway LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s96 DATES OF HEARING: 24/11/2005 EX TEMPORE JUDGMENT DATE : 11/24/2005 Applicant: Mr M Wright, barrister instructed by Mr W Wall of Hinterland Legal LEGAL REPRESENTATIVES: Respondent: Mr A Seton, solicitor instructed by Ms S McKelvey, council legal officer JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 24 November 2005 10493 of 2005 Chris Lonergan & Associates v Byron Shire Council JUDGMENT 1 Senior Commissioners: This is an appeal against the refusal by Byron Shire Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 to amend the conditions of Consent 93.449, dated 15 February 1994. The site 2 The site is lot 21 DP 1034998, Tweed Valley Way, Yelgun. The allotment is in two portions, both irregular in shape. The northern portion has an area of 1.65ha, while the southern portion has an area of 43.49ha. A 20m-wide right-of-way, located on lot 122 DP 1003400, connects the two portions. Relevant history 3 In May 1984 DP 702243 was registered creating lots 4 and 5, together with a right-of-carriageway that burdened lot 5 in favour of lot 4. Lot 4 comprised two separate parcels joined by the right-of-carriageway through lot 5. In May 1993 the council refused consent to an application to subdivide lot 4 into two lots of 1.65ha and 49.79 ha. The reason was that the smaller lot did not comply with the minimum allotment size in the zone. 4 In June 1993 the council granted consent to an application for a Multiple Occupancy Development comprising eight dwellings on the southern portion of lot 4. The consent was subject to various conditions, including conditions, which required provision at all times of bush fire protection measures including a 20m-wide inner radiation zone, a 20m-wide outer radiation zone, a vehicle turning area and a 4,000 litre water supply for fire mitigation purposes. 5 On 15 February 1994 the council issued consent to subdivide lot 4 into two lots by allowing an Objection under State Environmental Planning Policy 1. The then Department of Planning granted concurrence on the grounds that the proposal formalised an existing situation. The applicant's Statement of Environmental Effects accompanying the application for subdivision stated: …the most important benefit to be achieved from the proposed subdivision of these two existing separate parcels is the abolition of an ongoing maintenance and internal access problem, in favour of achieving two separate allotments that have existed and easy access directly off council or State-maintained bitumen sealed roads. Lot 1 currently gains safe access off Wooyong Road. Lot 2 currently gains safe access off the Pacific Highway. 6 Presumably in response to this statement, the council imposed Condition B11 to extinguish the existing right-of-carriageway between the two newly created allotments. In March 1998 the council wrote to the owners of the subject site, Mr and Mrs Cole, confirming that construction of the vehicle access constitutes substantial commencement in relation to the development approval. 7 Two changes have occurred since the 1993 approval of the MO Development and the 1994 approval of the subdivision application. First, the Freeway was constructed. It eliminated the level access of lots 4 and 5 to the Pacific Highway. The access is now from the Tweed Valley Way through a narrow tunnel under the Freeway. Second, the document Planning for Bushfire Protection was published in 2001. It raised the requirements for planning for safety from bushfires. The proposed amendment 8 The applicant seeks to amend two conditions of Development Consent 93.449, dated 15 February 1994, Condition A and Condition B11. 9 Condition A now reads: Development generally being in accordance with plans unnumbered and titled "proposed subdivision Lot 4 DP 72243, Pacific Highway, Yelgun" and undated, submitted on the 25 October 1993 as modified by any conditions of this consent. 10 The applicant seeks to amend the above condition as follows: Development generally being in accordance with plan marked A and titled "Amended Subdivision Plan - DA 93/49 Lot 121 DP 1003400 Tweed Valley Way, Yelgun, and dated 4/3/04, as modified by any conditions of this consent. 11 Condition B11 now reads: Extinguishment of the right-of-carriageway part lot 4 and lot 5, DP 702243, created by section 88B of the Conveyancing Act. 12 The applicant seeks to amend the above condition as follows: Right-of-carriageway to be retained between approved lots 1 and 2 to facilitate alternative bush fire egress to lot 1. The objectors 13 The owner of lot 122 DP 1003400, the property through which the right-of-carriageway passes, Mrs Raewyn Foster, placed an affidavit before the Court stating that the continued general use of the right-of-carriageway was a burden on the agricultural activities of her property. She supported the council's condition B11, requiring the extinguishment of the right-of-carriageway. The Court-appointed experts 14 The Court had appointed Mr D McMonnies, a bushfire hazard consultant, and Mr C Power, a consultant planner as experts. Mr McMonnies came to the conclusion that the RIGHT-OF-CARRIAGEWAY was required for the safety of the residents of the MO Development, but that that was the only reason for its continued existence. Mr Power agreed with the substance of Mr McMonnies' recommendation, though he differed in the more detailed aspects of the road to be constructed on the right-of-carriageway. Agreement of the parties 15 While at the commencement of the hearing the parties appeared to be far apart, during the hearing they reached a compromise. The compromise entails restricting the use of the right-of-carriageway to bushfire emergency only and constructing a gate and fence at either end to prevent general access to it. Mr McMonnies and Mr Power supported the compromise position. The objector, Mrs Foster was also satisfied that the compromise responded to her concerns. 16 Given that parties have reached a common position that satisfies them, the two Court-appointed experts and the objector, the Court agrees to the making of consent orders. Consent orders 1 The appeal is upheld. 2 The application under s96 of the Environmental Planning and Assessment Act 1979 to modify Development Consent 93.449, dated 15 February 1994, is approved in the following terms. a) Delete Condition A and replace with: "Development generally being in accordance with the plan marked Plan A titled 'Amended Subdivision Plan – DA 1993/449, dated 15th February 1994, 2 lot subdivision of lot 121 DP1003400 Tweed Valley Way, Yelgun', drawn by C Lonergan and dated 4/3/04, as modified by any conditions of this consent. b) Delete Condition B11 and replace with: "The right-of-carriageway 20m wide that burdens lot 122 in DP1003400 and benefits the subject land shall be varied so that the carriageway may be used only for the purpose of providing alternative access in times of bushfire emergency." c) Add the following new condition B12: "Gates, fencing and appropriate signage to be provided at each end of the right-of-carriageway 20m wide where it intersects the northern and southern boundaries of lot 122 DP 1003400, designed to prohibit general access along the access road and to restrict its use to alternative emergency bushfire access purposes only. Additional signs to be placed at either end of the Pacific Highway underpass tunnel that provides access to proposed lot 2, advising that it is a one-lane tunnel and users should watch for emergency vehicles." 3 The exhibits are returned. _____________________ Dr John Roseth Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.