Land and Environment Court of New South Wales CITATION : Bathurst Christian Life Centre Incorporated v Bathurst Regional Council. [2009] NSWLEC 1406 APPLICANT Bathurst Christian Life Centre Incorporated PARTIES : RESPONDENT Bathurst Regional Council. FILE NUMBER(S) : 10759 of 2009 CORAM: Hussey C KEY ISSUES: SECTION 121B ORDER :- Timely compliance with conditions of consent requiring roadworks, footpath and car park sealing. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 1 December 2009 EX TEMPORE JUDGMENT DATE : 1 December 2009 APPLICANT Mr D Stein (solicitor) SOLICITOR David Stein Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr P Crennan (solicitor) SOLICITOR McIntosh McPillamy & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 1 December 2009 10759 of 2009 Bathurst Christian Life Centre Incorporated v Bathurst Regional Council. This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background. 1 This appeal is against a s121 B Order requiring civil works to be completed, in accordance with the conditions of consent, at the new church complex located at the intersection of Gilmour Street and Hereford Street (200 Gilmour Street), Kelso. 2 The appeal was listed for a s34 conference and following a view and discussions between the parties, they were unable to reach an agreement. However the parties concurred with the matter then being determined on merit. 3 Development consent for the church and ancillary works was granted on 16 October 2006. This consent imposed some 83 conditions, which included the construction of the adjacent road shoulder/kerb and guttering, footpath paving and sealing of the car park. 4 The relevant conditions for this appeal are: 30. The construction and sealing of the road shoulder and construction of a barrier, kerbing and guttering, including the provision of street drainage where necessary in Gilmour Street for the full frontage of the subject land. All such works are to comply with Bathurst Regional Council's Guidelines for Engineering Works. 52. The paving (in concrete) and permanent line marking of all vehicular manoeuvring and parking areas, in accordance with Bathurst Regional Council's Guidelines for Engineering Works. 53. The construction of a concrete footpath 1.2 m wide and 100 mm thick and for the full frontage of the subject land to Gilmour Street in accordance with Bathurst Regional Council's Guidelines for Engineering Works. 5 The church building was completed to a stage, which allowed the council to issue an Interim Occupation Certificate on 30 May 2008, on the basis that required the outstanding works to be completed by 30 November 2008. 6 Following subsequent negotiations between the parties, including the council providing a quotation to construct the works, the works nevertheless have not started. Consequently council issued the s 121B Order requiring the outstanding works to be completed within 3 months of its Order dated 17 September 2009. 7 In response to the non-completion of the civil works, the church accepts that they will eventually be constructed, however due to funding difficulties and the need to clarify the various specifications for the works, they require more time. The evidence 8 Following the view, it is apparent that the church conducts a number of activities that create the demand for safe access/egress from the property, particularly considering its proximity to the intersection roundabout. It is also apparent that the required section of road shoulder and K & G is the only missing section in the intersection environs. Similar works have been completed adjacent to the neighbourhood shopping centre, opposite the site in Gilmour Street. 9 The council's submission is that it is standard policy to require developers to upgrade the adjacent road shoulder and ancillary works to a standard appropriate to the neighbourhood, in order to achieve adequate safety and amenity. Roadworks 10 Having considered the various submissions, I accept council's primary submission that the main priority is for the construction of the road works in Gilmour Street. It is apparent that some traffic to the church has formed a temporary driveway over the footpath into the church and I do not consider this a safe or desirable movement. Furthermore, it appears there is parking occurring along this unsealed shoulder which then generates additional pedestrian movements in and around the church and the shopping centre and contributes to pot-holing. 11 Insofar as council is prepared to allow a further extension of time until 30 April 2010, to complete these works, this is based on the constraint that the road sealing after this date is undesirable during the colder weather. Taking into consideration the need to update the road construction plans by the applicant, then obtain council and the RTA approvals before any contract can be finalised, I accept the time-frame is quite tight, especially considering intervening December-January holiday period. 12 Consequently, I am satisfied from the evidence that the level of risk of delaying the finalisation of these road works until after the winter is acceptable in the particular circumstances. Therefore the road shoulder and K & G should be completed by 31 December 2010. 13 The other component of these works is the 1.2m path paving along Gilmour Street. The council officers also conceded that this could be delayed until after the shoulder construction and constructed separately, if so desired by the church. Taking into account the likely limited usage of the footpath in the short term, it is reasonable for it to be completed by 31 December 2011. Car park sealing 14 The requirements for this condition caused some confusion for the church, apparently due to different officers involvement. However it appears that council has approved some modifications of the original car park, resulting in the requirement to provide 82 line-marked spaces. 15 The car park area has been formed and generally graded as required by council, but not sealed. Insofar as condition 52 specifies the paving to be concrete, the council officers agreed that a 2-coat bitumen seal would be adequate in the circumstances. I understand that this is on the basis that the base-course material has been adequately compacted to ultimately accept the bitumen seal, which is considerably cheaper. 16 Again considering the usage and circumstances of the case, the council officers agreed that the bitumen sealing of the car park could be delayed until 31 December 2011. Conclusions 17 Having considered the evidence and undertaken a view, I accept the church's acknowledgement that the outstanding civil are to be completed subject to funding availability. But there are other public interest concerns involving safety and amenity that also have to be considered, so that the council policies are reasonably satisfied. 18 Accordingly, I am satisfied that the engineering plans require some detailing amendments, particularly the revised location of the entry point to Gilmour Street. Then the authorities approvals are required causing extra pressure, if the works have to be completed before the winter cut-off date. In these circumstances I am satisfied the safety risks and amenity can be reasonably addressed by the completion of these works by 31 December 2010. 19 Likewise, the path paving to be completed by 31 December 2011. Car park sealing 20 With regard to the car park sealing, I rely on the council officer agreement that the condition 52 specification can be amended to require a 2-coat bitumen seal, in lieu of the more expensive concrete. I think it is important that this sealing be completed as soon as possible to ensure the safety of the car park and amenity by reducing dust and drainage problems. Importantly also, the sealing will enable the 82 spaces to be properly marked to facilitate the safe and orderly use of this area, as envisaged by the terms of the original consent. 21 In this regard, I rely on the concession by the council officers that this car park sealing should be completed by 31 December 2011, is reasonable in the circumstances. Court orders 22 The Court then makes the following orders: 1 The appeal is upheld. 2 Pursuant to Section 121 (B) of the EPA & Act 1979, the following Order No 15 is made: A. Complete the works outlined in the following revised conditions of consent within the specified time frames: 30A The construction of the road shoulder and the construction of a barrier, kerbing and guttering, including the provision of street drainage where necessary, in Gilmour Street for the full frontage of the subject land. All such works to comply with detailed plans submitted to and approved by council. The work to be completed by 31 December 2010. 52A The sealing (2-coat bitumen seal) and permanent line marking of all 82 vehicular manoeuvring and parking areas, to be in accordance with detailed engineering plans submitted to and approved by council. Such work to be completed by 31 December 2011. 53A The construction of a concrete footpath 1.2m wide and 100mm thick and for the full frontage of the subject land to Gilmour Street in accordance with detailed plans submitted to and approved by council. Such work to be completed by 31 December 2011. 3 The exhibits be returned. ________________________ R Hussey Commissioner of the Court 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.