Land and Environment Court of New South Wales CITATION : Groeneveld v Wollongong City Council [2009] NSWLEC 1238 APPLICANT John Groeneveld PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 11050 of 2008 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- subdivision - grade of access road - loss of vegetation LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Wollongong Local Environmental Plan 1990 DATES OF HEARING: 22, 23 June 2009 EX TEMPORE JUDGMENT DATE : 24 June 2009 APPLICANT In Person LEGAL REPRESENTATIVES: RESPONDENT Ms F Berglund, barrister SOLICITORS Kells the Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 24 June 2009 11050 of 2008 John Groenevld v Wollongong City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA 2007/594 by Wollongong City Council (the council) for the subdivision of land at 77 New Mount Pleasant Road, Mount Pleasant (the site). The site 2 The site is lot 60 in DP 1011298. It is irregular in shape with a 16.995 m frontage to New Mount Pleasant Road and a 69.755 m frontage to Cabbage Tree Lane. The site has a total area of 5,443 sq m. Cabbage Tree Lane is an unformed road reserve. The council is the road authority. It is partially formed at its western end near Brokers Road but unformed where the lane joins the site. The alignment is generally poor and it is in a degraded state of repair. 3 The site is occupied by a two-storey dwelling and bed and breakfast accommodation located at the New Mount Pleasant Road frontage. Access is not available to the rear of the site from New Mount Pleasant Road. The proposal 4 The proposal is to subdivide the site into five lots. These are: - Lot 1 - 1,029 sq m; - Lot 2 - 1.127 sq m; - Lot 3 - 582 sq m, excluding the access handle, - Lot 4 - 644 sq m, excluding the access handle, and - Lot 5 - 1,798 sq m, containing the existing dwelling. 5 Access is to be provided by Cabbage Tree Lane to the lots through the reconstruction of a public road within the Cabbage Tree Lane road reserve; a turning head at the end of the new road and an internal road. Building envelopes are provided for the Lots 1 to 4. The subdivision will require the removal of some existing vegetation. Relevant planning controls 6 The site is zoned 2(a) - Low Density Residential under Wollongong Local Environmental Plan 1990 (LEP 1990). The proposed subdivision is permissible with consent and satisfies the relevant development standards within LEP 1990. 7 Wollongong Development Control Plan No 49 (DCP 49) applies to the site with s 7 relevantly applying to "Infill Residential Subdivisions". There was no dispute that the proposal satisfies the requirement for minimum lot size, (s 7(1)) and minimum buildable area (s 7(2)). The contentions 8 The contentions raised by the council can be grouped into the two following main areas: 1) the safety and serviceability of the use of Cabbage Tree Lane for access; and 2) tree removal, including the impact on Illawarra Subtropical Rainforest and whether a Species Impact Statement is required. The evidence 9 Evidence for the applicant was provided by Mr David Thomas, a civil engineer, on the road issues and Dr Kevin Mills on the ecological issues. Evidence for the council was provided by Mr Colin Jones, a civil engineer, on the road issues; Mr Gary Leonard on the ecological issues and Ms Danielle Pollock on the landscape issues. 10 In addition to the expert evidence, a number of residents who use Cabbage Tree Lane for access to their properties provided evidence on site. They opposed the subdivision on similar grounds to that raised by the council. Cabbage Tree Lane 11 The contentions raised by the council on the road issues relate to the safety of the proposed road and the impact on existing residents, particularly during construction. 12 Mr Jones and Mr Thomas agreed that it is physically possible to construct the proposed road. Mr Jones, however, states that the grade of the proposed road at 27.8% is unacceptable and creates unacceptable safety issues for the users of the road. He states that this grade is greatly in excess of that permitted by council subdivision standards, the appropriate Australian standard and AMCORD. In his opinion, a road with a grade in excess of 17% is not acceptable as a public road as it will be used by the public, service and delivery vehicles and people unfamiliar with its grade. The grade raises safety concerns because it is likely to become difficult or dangerous in adverse weather conditions and there is the potential for out of control vehicles to accelerate over the 130 m length of the road, due to its straight design. The use of the road is also unsuitable for pedestrian use because of the grade, particularly in adverse weather conditions. 13 Mr Thomas accepts that the grade will exceed the standards identified by Mr Jones, however he states that there are many roads that have grades similar to that proposed in this application, including sections of nearby Brokers Road. He further states that the proposed road will be a significant benefit to the residents currently using Cabbage Tree Lane as the construction and alignment will be improved so that easier access will be available to their properties. The connection of Cabbage Tree Lane to Brokers Road will also be improved. 14 The salient question is whether the added benefit to the existing residents of an improved alignment and construction outweigh the disbenefits of adding additional traffic to a road of unacceptable grade. In my opinion, the answer is clearly no. The existing grade of Cabbage Tree Lane exceeds the relevant engineering standards for grade by a significant amount. While the road is currently substandard in terms of alignment and construction, it is an existing road that presumably, at some time in the past was endorsed by the council. There are likely to be many other similar roads that have been constructed to standards that are now not acceptable but it does not follow that these presently unacceptable roads should be repeated. 15 I do not accept that it is appropriate or sensible to exacerbate an already unacceptable situation with a subdivision of the site that will allow at least the traffic for four new residential lots. The traffic on Cabbage Tree Lane will increase by a minimum of 40%. The already unacceptable grades will now be over a road that is double the length of the existing sealed area of Cabbage Tree Lane. The concerns of Mr Jones, in my view, are valid. While safety barriers can be provided and pavement surfaces provided to maximise traction, it does not address the unacceptable grades. The difficulty for emergency vehicles, delivery vehicles and pedestrian access, particularly in adverse weather conditions, cannot be addressed because of the topography and dimensions of the road reserve of Cabbage Tree Lane. 16 The fact that the site has an area of 5,443 sq m, when the minimum lot size is only 450 m, does not provide any warrant, in my view, for the subdivision, given the topographical and access constraints of the site. The inability to provide suitable access to the proposed lots is sufficient, in my view, to refuse the application. 17 For completeness I will briefly deal with the other issues. 18 There was disagreement between Mr Jones and Mr Thomas on the impact of the road construction on access to the properties in Cabbage Tree Lane. The loss or interruption to access was a significant concern to the residents, who rely on this road for access to their properties. Mr Jones maintained that insufficient details have been provided to assess the impact of construction on access whereas Mr Thomas was of the opinion that access could be provided with minimal interruption. Mr Thomas stated that additional plans and details are not required as access could be adequately controlled through the supervising engineer during construction. 19 In my view, Mr Thomas would be correct in most circumstances, however because of the particular characteristics of constructing this road and also the undeniable need to provide access to the existing properties, I do not accept that sufficient information has been provided, in either written or oral form, to satisfy me that reasonable levels of access can be provided during construction of the road. Tree loss 20 On the ecological issues, Dr Mills and Mr Leonard disagreed on the extent of the community on site. The Illawarra Subtropical Rainforest (the community) is an Endangered Ecological Community, being identified in Part 3 of Schedule 1 of the Threatened Species Conservation Act 1995. Based on the Final Determination of the Scientific Committee, Mr Leonard states that the existing vegetation on site forms part of the community and, as such, should not be removed. In his opinion, the extent of vegetation removal is significant and that a Species Impact Statement is required. 21 Dr Mills accepts that a strict reading of the Final Determination of the Scientific Committee could lead to the conclusions reached by Mr Leonard however taking a more practical consideration including the wide distribution of the community in the Illawarra and the degraded nature of the vegetation on the site in the are of the building envelopes, Dr Mills supports the removal of some vegetation but with the retention of the more intact area of the community in the south east corner of the site. When combined with a Vegetation Management Plan to maintain the integrity of this area, Dr Mills considers that the vegetation in the proposed building envelopes could be removed without having any significant impact on the community. This was confirmed in his 7-part test. 22 With the benefit of the site view, I generally agree with the conclusions of Dr Mills. The area of the proposed lots is largely highly degraded with little ground cover or under storey and highly scattered canopy trees. While there is the possibility that this area could regenerate, it would take a considerable time even under optimal conditions. This would likely include the prohibition of access to a large proportion of the site. Given the zoning of the site, this is unlikely and probably unreasonable. I accept that the proposed development is not likely to have a significant effect on the community and, as such, a Species Impact Statement is not required. I also accept, as did both experts, that the Vegetation Management Plan, with some amendments, could satisfactorily control the area of the community in the south east corner of the site. 23 Ms Pollock addressed the related, but separate issue of tree retention. She maintained that insufficient detail was provided to properly assess the effect of the proposed development on existing vegetation. Putting aside the issue of the community, there is no valid reason why the proposed development should not seek to retain as much of the existing vegetation as possible, including those within the proposed lots, but outside the building envelopes. I agree with Ms Pollock that the information provided by the applicant does not allow this to be properly considered. In the absence of details such as retaining walls, embankments and the extent of the temporary access during construction within the road reserve, the effect on specific trees cannot fully be assessed. 24 The absence of details on retaining structures also supports the concerns of some local residents, that it is not possible to consider the impacts of the proposed development without details of these structures being available. Orders 25 For these reasons, the orders of the Court are that: 1. The appeal is dismissed. 2. DA 2007/594 for the subdivision of land at 77 New Mount Pleasant Road, Mount Pleasant is refused. 3. The exhibits are returned. ___________________ G T Brown Commissioner of the Court 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.