Bopping v Palerang Council [2011] NSWLEC 1319

Land and Environment Court New South Wales

Medium Neutral Citation: Bopping v Palerang Council [2011] NSWLEC 1319 Hearing dates: 5 October 2011 Decision date: 06 October 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Parties directed to provide amended conditions. Catchwords: Development modification - erection of dwelling house - conditions requiring upgrading of access road Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Land and Environment Court Rules 2007 Tallaganda Local Environmental Plan 1991 Cases Cited: Botany Bay City Council v Saab Corporation Pty Ltd [2011] NSWCA 308 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Cardwell Shire Council v King Ranch Australia Pty Ltd [`984] HCA 39 Ferguson v Dungog Shire Council [2006] NSWLEC 459 Category: Principal judgment Parties: Darren Bopping (Applicant) Palerang Council (Respondent) Representation: Counsel Mr M Fraser (Applicant) Solicitors Mr D Freestone, Hozack Clisdell Lawyers (Applicant) Mr A Bradbury, Williams Love & Nicol (Respondent) File Number(s): 10646 of 2011

EX TEMPORE Judgment 1This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the determination by Palerang Council of an application made by Mr Darren Bopping (the applicant) to modify a development consent DEV.2010.0017 granted by the Council on 22 April 2010 for the erection of a manufactured dwelling on lots 358 and 359 DP 755911 on O'Briens Road, Jembaicumbene (the site). 2The site is located approximately 10km south of Braidwood on the northern side of the Jembaicumbene Creek. The site previously had a dwelling house, and parts of that dwelling remain. The site and surrounding land is rural in character and used for grazing. The entrance to the site is located approximately 1,950 m east along O'Briens Road from Cooma Road. O'Briens Road is a gravel and dirt road, generally single lane, which runs along a road reserve between Cooma Road and Majors Creek Road, and is generally fenced on one side only. 3The applicant applied on 8 June 2010 to modify the development consent by the deletion of conditions 20 - 27 inclusive and 52 as imposed by the Council. Condition 20 requires: The unformed part of O'Briens Road from Chainage 690m to Chainage 1950m approximately shall be upgraded as necessary to the standard of a Type 1 road as set out in Tallaganda Shire Council DCP No 4 Rural 1(A), Table 2, Rural Residential, Rural and Environmental Protection Zones Road Standards Schedule. Provide stormwater culverts as required to provide for all weather 2 wheel drive access. 4Condition 20 would require the applicant to reconstruct approximately 1.26km of O'Briens Road from Cooma Road to the site, commencing from a point 690m east of Cooma Road, which is at the entrance to another property that adjoins O'Briens Road. 5Condition 21 requires the applicant to construct a Type C entrance from O'Briens Road to the property. Conditions 22 and 23 relate to design and construction standard and design drawings. Condition 24 relates to sediment and erosion control. Conditions 25 and 26 relate to requirements for approval under s 138 of the Roads Act 1993. Condition 27 requires the applicant to maintain the section of O'Briens Road from Chainage 960m to Chainage 1950m. Condition 52 requires the applicant to consolidate Lots 358 and 359 into a single allotment. 6On 21 September 2010 the Council determined the modification application by amending conditions 24 and 25, and refusing to delete any of the remaining conditions. 7The applicant appealed to the Court under s 96(6) of the Act on 20 July 2011 and leave was granted by the Registrar under r 7.3 of the Land and Environment Court Rules 2007 to extend the time for filing an application. The matter commenced on site as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement, and consented to my determining the matter on the basis of what occurred at the conciliation conference, and further submissions. 8During the conciliation the parties reached agreement that condition 52 could be amended to require the applicant to register a covenant on the title to Lot 358 to alert potential purchasers that there is no dwelling entitlement for that lot. The parties agreed to the terms of the amended condition 52. 9The Council did not press for the retention of condition 27, which would require the applicant to be responsible for ongoing maintenance of the relevant section of O'Briens Road, or condition 21, which requires upgrading of the entrance to the site from O'Briens Road. 10The central issue between the parties is whether the applicant should be required to undertake work on O'Briens Road from Chainage 690m to Chainage 1,950 m. 11The applicant contends that the conditions do not reasonably relate to the proposal to replace the former dwelling house on the site; that imposition of that requirement imposes an unreasonable and excessive cost on the applicant; and that all that is required is patching of the road which is a maintenance responsibility of the Council. 12The Council contends that the conditions are required to ensure practical vehicular access which means all weather twowheel drive access; that the costs are the costs associated with developing a remote site that does not currently enjoy a reasonable standard of access; and that the development could not have been approved without adequate practical vehicular access, so that a modification of the consent to remove the conditions would result in the development not being substantially the same as that for which consent was originally granted.