Land and Environment Court of New South Wales CITATION : Hebden v Great Lakes Council [2007] NSWLEC 512 APPLICANT John Hebden PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 11274 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Rural 1, dwelling house, public road, access not available LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Great Lakes Local Environmental Plan 1996 DATES OF HEARING: 23/07/2007 EX TEMPORE JUDGMENT DATE : 23 July 2007 APPLICANT Mr Tomasetti, barrister Instructed by J. A. Snelgrove of Curwoods Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rees, solicitor of Mallik Rees Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 23 July 2007 11274 of 2006 John Hebden v Great Lakes Council JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. Background 1 This appeal was lodged against conditions of consent, relating to access, imposed on a development application for a dwelling situated on a rural allotment at Coolongolook. The allotment is somewhat remote and does not have the benefit of access to a public road. Instead, its access is along Mitchell Road (an unsealed rural road), then via an 'unnamed trail' through the Bachelor State Forest. 2 Accordingly, the deferred commencement consent issued by Council included the following preliminary conditions, which required satisfaction of: 2a. Submission of documentary evidence of dedication and creation of legal access via the existing formed road known as Mitchells Road to Lot 158 DP 753141, Coolongolook subject to the formed road being upgraded to Council and Rural Fire Service requirements. b. All costs with the construction, upgrading and road opening process are to be borne by the developer at no cost to Council. c. Ongoing maintenance of the road be the responsibility of the landowners. 3 Because of the uncertainty in achieving the dedication and legal access from Mitchells Road, further discussions were undertaken by the parties, including a joint planning/engineering conference, which resulted in an agreed condition, to cover the access arrangements. This resulted in the parties agreement to consent orders. The site 4 The subject site is described as Lot 158 DP 753141 Parish of Bachelor, Coolongolook. It has an area of 113 ha. 5 The site is partly cleared and is bounded by: o to the north by Bachelor State Forest, rural land, o to the east, by the Wallingat River, o to the south, by rural land o to the west, by rural land. 6 The area surrounding the property is rural in character and predominantly uncleared land with a small number of dwellings contained on surrounding parcels of land. 7 Access to the property is gained via the Pacific Highway, then Kennedys Gap Road (a formed, unsealed rural road), Mitchells Road (a formed, unsealed rural road), unnamed trail through Bachelor State Forest (a formed, unsealed rural track), a right-of-way and an internal, unsealed access road. The proposal 8 The proposal is for a 3-bedroom, single story dwelling clad with "colour bond" metal and timber panelling together with a "colour modern custom orb" roof. Planning controls 9 Great Lakes Local Environmental Plan 1996 ("Great Lakes LEP"). Under this LEP the site is within the 1 (a) Rural zone. The proposal is permissible with consent. The zone objectives are as follows. DEVELOPMENT CONTROL TABLE Zone No. 1(a) - Rural 1. What are the objectives of the zone? The objective of the zone is to restrict development to those uses which are unlikely to - (a) prejudice in a significant manner the agricultural production potential of land within the zone; and (b) generate significant additional traffic, or create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road; and (c) have an adverse impact on the area's water resources; and (d) create unreasonable or uneconomic demands for the provision or extension of public amenities or services. 2. What is permitted without development consent? Development for the purpose of: agriculture; bushfire hazard reduction. 3. What is permitted only with development consent? Any development not included in Item 2 or 4. 4. What is prohibited? Development for the purpose of: boarding houses; bulky goods salesrooms or showrooms; cormnercial premises; hotels; medical centres; multiple dwellings; off-site promotional signs; residential flat buildings; shops (other than convenience stores); vehicle body repair workshops; vehicle repair stations; warehouses. (Amendment No. 28) The evidence 10 The main evidence in this matter is a joint conference report from Mr A Bawden (town planner), Mr D Hartman (development engineer) and Mr G Maberly-Smith (town planner). They considered the proposed access arrangements and agreed that although the unnamed trails through the State Forest are not dedicated public roads under councils control, nevertheless they provide satisfactory physical access through the forest and to the subject property. 11 These experts also agreed that the site is waterfront and access to the property by boat may be an alternative, subject to appropriate approval of infrastructure and consultation the service providers. Consequently they support the development application subject to the maintenance of legal access to the property, which is to be maintained to a reasonable standard. 12 The application was referred to Forests NSW, who said that it had no objection to the use of Mitchells Forest Road and the unnamed trail, subject to a number of conditions including: o This road does not constitute a legal access in terms of The Roads Act 1993. o FNSW cannot guarantee the long term existence of this road. o FNSW cannot guarantee that the land on which the road is located will remain under the control of FNSW in the future. o Access is limited to the existing roads and trails. No now trails are to be constructed. o The roads and trails will be subject to normal maintenance carried out by Forests o NSW and no guarantee is given that the present standard will be maintained at all times. Should adjacent landholders require an access (:,f higher standard, Forests NSW o may authorise them to carry out road improvements. This work will be done at their cost o It is possible that this road may be closed from time to time in the event of extreme fire danger, flood damage or to allow the road maintenance works. This action will be at the discretion of the Regional Manager, Hunter. o Any damage, over and above normal wear and tear, caused through landholder usage will be the responsibility of the landholder. Any remedial costs shall be borne by the landholder. Forests NSW approval must be obtained prior to the commencement of any repair works. o Forest NSW roads and trails are regarded as "public roads". Conclusion 13 Having considered the evidence, the submissions and undertaken view, I am satisfied that the proposed access provides a reasonable level of access to this rural lot. I note that in the vicinity, there is an established farmhouse that has apparently utilised this means of access for approximately 70 years. I also understand that there is a system of adjoining trails, which enable alternative access in emergency situations and the applicant is apparently negotiating legal access via of these trails. 14 Taking into account the agreement of Forests NSW and the fact that this form of access has provided satisfactory access for a long period of time, I am satisfied that the proposed arrangements are satisfactory for access to this additional rural dwelling. The agreed condition of consent requires the imposition of an 88E covenant to restrict use of the dwelling unless satisfactory vehicle access to the property is maintained. This is to cover any future contingency that the access trails are no longer available. 15 I understand that this process has been used satisfactorily in the past for other developments, where legal access was not directly available to the subject property. Under these circumstances, I am satisfied that the agreed conditions of consent are appropriate to make the following consent orders, which includes conditions requiring the internal access roads being maintained to a suitable standard for service vehicles. Court Orders 16 By consent the Court orders: 1. The appeal is allowed. 2. Development consent is granted to the erection of a dwelling house on Portion 158 DP 753141 at Coolongolook in accordance with the conditions of consent in Annexure A. ___________________ R Hussey Commissioner of the Court A.K/ljr 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.