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. Planning Controls 13The site is zoned 1(a) Rural under the Tallaganda Local Environmental Plan 1991 (the LEP). The objectives of the 1(a) zone are: 1 Objectives of zone The objectives of this zone are to promote the proper management and utilisation of resources by: (a) protecting, enhancing and conserving: (i) agricultural land, particularly prime crop and pasture land, in a manner which sustains its efficient and effective agricultural production potential, (ii) soil stability by controlling and locating development in accordance with soil capability, as identified by the Soil Conservation Service, (iii) forests of existing and potential commercial value for timber production, (iv) valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits, (v) trees and other vegetation on environmentally sensitive land and in any place where the conservation of the vegetation is significant to the protection of scenic amenity or natural wildlife habitat or is likely to control or contribute to the control of land degradation, (vi) water resources and water catchment areas for use in the public interest, (vii) localities of significance for nature conservation, including localities with rare plants, wetlands, permanent watercourses and significant wildlife habitat, and (viii) places and buildings of archaeological or heritage significance, including aboriginal relics and places, (b) facilitating farm adjustments, (c) minimising the cost to the community of: (i) fragmented and isolated development of rural land, and (ii) providing, extending and maintaining public amenities and services, and (d) providing land for future urban development, for rural residential development and for development for other non-agricultural purposes, in accordance with the need for that development, and subject to the capability of the land and its importance in terms of the other provisions of this clause. 14Clause 9(3) of the LEP provides that the Council shall not grant consent to development unless it is of the opinion that the carrying out of the development is consistent with the objectives of the zone. 15Clause 21 provides: 21 Dwelling-houses within Zone No 1 (a) (1) This clause applies to land within Zone No 1 (a). (2) The Council may only grant consent to the erection of a dwelling-house on land to which this clause applies on which no dwelling is erected and which: (a) has an area of not less than 40 hectares, (b) (Repealed) (c) comprises the whole of an existing holding, and providing the Council is satisfied that: (i) there will be adequate coinciding legal and practical vehicular access available to the dwelling-house, (ii) the erection of the dwelling-house will not create or increase ribbon development along a main or arterial road, and (iii) adequate utility services are or will be available to the existing holding, (d) comprises an allotment created by subdivision in accordance with clause 15, if the Council is satisfied that the use of the dwelling house will be ancillary and subsidiary to the purpose for which the allotment was created, (e) comprises an allotment created by a subdivision to which the consent of the Council was granted before the appointed day and on which a dwelling-house could have been lawfully erected under the planning instrument then in force, or (f) comprises an allotment created by subdivision in accordance with clause 13 and which has an area of less than 40 hectares but not less than 4 hectares where the Council is satisfied that: (i) the land is capable of sustaining a financially viable intensive agricultural activity, and (ii) the dwelling is necessary for, and will be ancillary to, the use of the land for the purpose of intensive agriculture. 16It was common ground that the site is an "existing holding" as defined in cl 5 of the LEP and that cl 21(2)(c) applies. The proposed dwelling is to be located on Lot 359, and it was common ground that in the absence of consolidation, if Lot 358 were sold it would be subject to the general control for the erection of a dwelling house in cl 21(2)(a) of the LEP. 17The Tallaganda Shire Council Development Control Plan No 4 (the DCP) applies to the site. Part 2 of the DCP Subdivision and Building includes Section 1 Subdivision and Section 2 Dwellings. Evidence 18The evidence included a site view, oral evidence given by the applicant and by his uncle, Mr Brian Bopping, and evidence given by Mr Van Osgood, a civil engineer, on behalf of the Council. Mr Osgood provided a written report on access matters and provided oral evidence. 19Mr Brian Bopping owns two parcels of the land in the vicinity of the site. His evidence was that the former dwelling on the site was last occupied in around 1980. He uses O'Briens Road three to four times a week to transport stock, and the road is adequate for his purposes. The Council graded O'Briens Road some time, to his recollection, in the 1980s. In 2009 he contacted the Council about a section of the road near the entrance to his property, and they put some gravel on that section. 20Mr Brian Bopping and the applicant gave evidence about the other users of O'Briens Road, which was not contradicted. That evidence was that there are two owners of separate parcels of land adjoining O'Briens Road who use it for agricultural purposes. Both have road access from their dwellings to other roads, and one of those owners has alternative access for agricultural purposes on an unformed Crown road between his property and the site, running from O'Briens Road. 21There is one landowner further to the east of the site who has recently upgraded the entrance to her property and put a caravan on it for use as a weekender. There are two other properties to the west of the site. One has access onto Cooma Road and the entrance to the other property is at Chainage 690 where the present Type 1 road finishes. 22Mr Osgood's written report included an assessment of the present state of O'Briens Road: O'Briens Road appears to be a reasonably formed gravel track for approximately 690m from Cooma Road. This section of road is crowned to shed water and has longitudinal and lateral stormwater drainage facilities, ie table drains and culverts to control/permit the flow of stormwater runoff. O'Briens Road currently serves only one residence which ahs an entrance to the property located on the northern side of O'Briens Road at approximate Ch690. From Ch690 to the proposed entrance to the subject development (Ch1950) the O'Briens Road is unformed and more akin to an informal track used only by rural vehicles, ie regarded as a track created by farm vehicles travelling over the natural ground. Thus the track is only visible by two wheel tracks generally located centrally within the O'Briens Road Reserve. This section of track does not appear to include any longitudinal stormwater drains or lateral culverts controlling the flow of stormwater runoff or providing any protection of sheet flow to the travelled surface. The topography of the alignment of the track between Ch690 and Ch1950 is flat and not conducive to shedding stormwater runoff. 23Mr Osgood addressed the issue of whether O'Briens Road is serviceable in its present condition, stating: The section of O'Briens Road between approximate Ch690 and Ch1950 is trafficable by two wheel drive vehicle in its present condition. Stormwater will pond in low points along the track, namely within the wheel tracks and further consistent traffic will deepen the wheel tracks where water is ponding and begin to create potholes or ruts, thus exacerbating the problem of removing stormwater from the travelled route and progressing the deterioration of the track surface. Deterioration of a poorly constructed pavement or the existing track will vary with respect to the volume and speed of the future regular traffic and is dependent on the existing ground conditions. 24On whether O'Briens Road gives practical access to the site, Mr Osgood stated: The section of O'Briens Road between approximate Ch690 and Ch1950 gives practical access to the site for the time being, however continued use of the track in its existing condition will promote the decline of the integrity of the track's surface because of the lack of stormwater drainage facilities, ie table drains and culverts. The track will then become impractical to continued use without regular maintenance, ie grading, reshaping and gravel base course supplementation. 25Mr Osgood further stated: The section of O'Briens Road between approximate Ch690 and Ch1950 is not capable of being travelled safely by a two-wheel drive vehicle in all weather conditions by any driver for the following reasons: 1.Low points exist along the alignment that either ponding water can sit or flowing water can pass over the track of unknown depth. 2.The alignment of the track does not provide substantial definition or delineation to assist vehicles staying on the alignment in heavy rain. 3.Deciation off the wheel tracks will more than likely result in bogging of the vehicle in soft topsoil after rainfall events. 4.There is minimal opportunity for motorists to turn the vehicle around whilst having confidence that the vehicle will not become bogged. 5.The road reserve appears not to be fenced on the southern boundary, thus stock can move freely on the travelled way, posing a hazard to motorists and stock in any weather condition. 26Mr Osgood provided an opinion of the construction costs for the Type 1 road, which in his estimate would total, including provisional expenditures, $97,000 (including site establishment and temporary traffic control costs). In oral evidence Mr Osgood stated that O'Briens Road is trafficable as is and agreed that it would be feasible to patch it up by adding gravel at potholes or potential potholes. That work would, on his estimate, take about a day and cost approximately $5,500, excluding gravel costs, at private commercial rates, and would need to be done every four to five years for maintenance. Without grading and reshaping the performance of the road would deteriorate with time. In his opinion patching work moves the problem to another area of the road and the better solution is to resheet and regrade the road. It would be feasible to reshape and resheet the relevant part of O'Briens Road to be 3m wide with a minimum 75mm gravel, and to improve or formalise the water course crossing at Chainage 940, that being a proposed variation of condition 20 in a form tendered by the Council. In Mr Osgood's estimate, that work would cost in the order of $44,625. 27Mr Osgood's evidence concerning the creek crossing which is a short distance to the east of Chainage 690, below the dam on Lot 10 DP 237973, was that it is trafficable, but that it would not be in all weather conditions. To bring it to a trafficable standard would cost in the order of $7,000 to $10,000. To bring it to a Type 1 road standard may require concreting work. 28Mr Osgood addressed the question of the entrance to the site from O'Briens Road, and in his written report he states that given the low traffic volume and sight distance along O'Briens Road available at the entrance, the entrance does provide a safe entry and exit to O'Briens Road. The entrance is not a formalised gravel surface. The entrance surface does not appear to pond water, and therefore does not appear to be a potential location for bogging of vehicles. Consideration 29I accept the evidence of the applicant and Mr Brian Bopping that the section of O'Briens Road between Cooma Road and the point at which it turns to the north, being some distance to the west from the site, is presently used by adjoining landowners for agricultural purposes, and is adequate for that use. It was common ground that the portion of O'Briens Road from the intersection with Cooma Road to Chainage 690 is constructed as a Type 1 road. I accept the evidence of Mr Osgood, which was confirmed on the vie, that past that point O'Briens Road is unformed; and comprises generally two wheel tracks within the road reserve; and that at low points, storm water can pond within the wheel tracks. 30Mr Osgood's evidence that the road is presently trafficable by a twowheel drive vehicle was confirmed by the access available during the view. I accept Mr Osgood's evidence that the road surface is affected by weather, and that consistent traffic across areas where storm water has ponded within the wheel tracks would deepen those tracks and create potholes or ruts. Mr Brian Bopping's evidence was that he is aware of this, and at times he exercises common sense and may choose not to drive on the road. I accept the evidence of Mr Osgood that the relevant part of the road is not capable of being travelled safely by a twowheel drive vehicle in all weather conditions. 31I am satisfied that the erection and occupation of a dwelling house on a property that has not been used for residential purposes since 1980 will increase the use of that section of O'Briens Road from the entrance to the site to Cooma Road. Mr Osgood's evidence that the typical traffic volume generated from a single dwelling lot for the location of the site would be up to seven vehicles a day was not challenged. 32The applicant submits that the road is currently trafficable by twowheel drive vehicles and only requires some maintenance in the form of extra gravel to address the normal wear and tear on the road by the residential use. In the applicant's submission, the road meets the requirements of cl 21(2)(c)(i) of the LEP now, and addressing normal wear and tear is a matter for which the Council should be responsible. The applicant submits that the imposition of a requirement that the applicant pay to have the road upgraded either to the standard of a Type 1 road, or to the more limited upgrading contemplated by the redrafted condition 20, would not be reasonable, relying on the test in Newbury District Council v Secretary of State for the Environment [1981] AC 578. 33The Council submits that the objectives of the LEP, and in particular the objectives of the 1(a) zone, are relevant, and that this includes that the development minimise the cost to the community of "fragmented and isolated development of rural land" and "providing, extending and maintaining public amenities and services", which would include roads. The Council relies on cl 21(2)(c)(i) of the LEP, which requires that it be satisfied there will be "adequate coinciding legal and practical vehicular access available to the dwelling house", and also on cl 3.5 of the DCP that "practical access" means "capable of being travelled in safety by a twowheel drive vehicle". The Council accepts that the road is used by others for agricultural purposes, and submits that with the erection of a dwelling house on the site, the only person who would benefit from any upgrading is the applicant. A Type 1 road is the lowest standard of road. The Council relies on the provisions for access in Section 1 of the DCP, acknowledging that while the section is headed "Subdivision", nonetheless submits that the provisions address developments more generally. The Council accepts that the cost of upgrading the road is high, however, submits that that is because of the location of the land, and that the cost goes with building a dwelling house in a location with limited access. 34The question of whether any of the other properties on O'Briens Road would also be an "existing holding" so that there would be the possibility of consent being sought for the erection of other dwelling houses, was raised during the course of the proceedings. The applicant submits that that possibility does not alter the position that there are already other users of the road, so that it is unreasonable to impose the costs of the upgrade on the applicant. The Council submits that even if other properties are existing holdings, the application should be assessed on the basis of the current use, as there is no indication of other applications and in any event there may be new planning controls that might alter the position for the existing holdings. 35The Council has confirmed that its records indicate that in addition to the two lots owned by the applicant which are an existing holding, the property further to the east with the recently constructed entrance and caravan, and two lots (being Lots 344 and 349) owned by Mr Brian Bopping, are existing holdings. On the Council's records other lots in the area are of a size that would permit the erection of a dwelling house under the provisions of cl 21(2)(a) of the LEP in any event. The Council's records also indicate that apart from this present application there is no development application currently pending for the erection of a dwelling house on any of these holdings. 36The most recent judicial consideration on the issue of the imposition of a condition requiring an applicant to carry out work relating to public amenities or services is that by the Court of Appeal in Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308, which concerned a condition requiring a developer to place underground all service cables in the street adjacent to the proposed development. This was a requirement of the applicable development control plan. The Court of Appeal held that the condition, properly construed, was validly imposed under s 80A(1)(a) of the Act, which permits a consent authority to impose a condition on a development consent if it relates to any matter referred to in s 79C of relevance to the development the subject of the consent. 37Basten JA noted (at para [9]) that there may be a question as to how distant, remote or indirect the relationship may be between the proposed development and the matters referred to in s 79C(1). The Court of Appeal considered the test in Newbury , namely that a condition can only be imposed for a planning purpose, must reasonably and fairly relate to the development and must not be so unreasonable that no reasonable authority could have imposed it. Basten JA (with whom Macfarlan JA agreed) noted (at [7]) that the issue is not so much whether that test applies but rather what it requires. In relation to the third element of the Newbury , namely reasonableness, Basten JA held: 15 Thirdly, an exercise of discretionary power may be capable of challenge as manifestly unreasonable, in the Wednesbury sense. However, that assessment will usually involve a comparison of the condition imposed with the scope and operation of the power being exercised. In circumstances where the condition must, for the purposes of the first test, be reasonably related to the purposes for which the power may be exercised, the practical significance of this test may be limited to cases where the severity of the burden placed on the applicant is disproportionate to the consequences attributable to the proposed development. Thus, whereas it may be reasonable to impose on a developer of a significant subdivision an obligation to contribute to the cost of upgrading a dirt road to a sealed road, it may not be reasonable and appropriate to include the expense of expanding the road from two lanes to four: see Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386 at 388 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ agreeing) in relation to a legitimate upgrading condition. Even where the expense sought to be recovered is thus disproportionate to the costs of a reasonable level of upgrading, there would, in all likelihood, be an available challenge on the basis of an improper purpose, under the first or second principles set out above. 38In this matter I agree with the Council that the provisions of the LEP are relevant under s 79C(1)(a) of the Act, in particular the zone objective (c) and the requirement in cl 21(2)(c) (i) that the Council may only grant consent to the erection of a dwelling house on land in the 1(a) zone, that is an existing holding, if it is satisfied that there will be adequate coinciding legal and practical vehicular access available to the dwelling house. 39There was no dispute that there is legal access. I accept the Council's position that practical access means capable of being travelled in safety by a twowheel drive vehicle. In circumstances where present safe access by a twowheel drive vehicle is dependent on weather conditions, and the proposed development will increase the use of the road, I am satisfied that it is reasonable to impose a condition requiring work on the road to ensure that practical vehicle access is available to the dwelling house as required by cl 21(2)(c). That others presently use the road for agricultural purposes would not preclude such a condition being imposed: Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39, at [10]. The imposition of such a condition would be consistent with the view taken by Bly C in Ferguson v Dungog Shire Council [2006] NSWLEC 459, on which the applicant relied. While both those decisions concerned a subdivision of land, the common element with this application is that the work required is reasonably related to the development. 40The next issue to consider is whether it is reasonable to impose such a requirement in the form imposed by the Council originally as condition 20. The Council relies on the provisions of the DCP, in particular cl 2.11 which specifies a Type 1 road as the minimum standard for private access road to an individual lot. That provision is located in the provisions relating to Subdivision, and there is no specific provision relating to dwelling houses in that regard in the DCP. It is not necessary to decide whether or not the Council has, as submitted by the applicant, applied this provision of the DCP inappropriately. The evidence before me is that while a regrading and resheeting of the road surface and the provision of table drains and culverts to control and facilitate storm water run off would be an ideal solution, achieving safe practical access would not necessarily require such work to be undertaken. Mr Osgood's evidence was that a more limited reshaping and resheeting and formalising the water course crossing (in the form proposed in the draft condition 20 tendered by the Council) would provide adequate all weather access, and also that more minor work placing additional gravel would achieve that by addressing immediately apparent potholes and dips. While I accept Mr Osgood's evidence that this latter response would not provide as good an outcome as either condition 20 in its present form or in the alternative form, and would require future work to fill other areas that might develop, on Mr Osgood's evidence ongoing maintenance would also be required for a reshaped and resheeted road surface. 41I am satisfied that it is reasonable to impose a condition requiring the applicant to do the work required to upgrade O'Briens Road between Chainage 690 and the entrance to the site by the supply and placement of gravel as discussed by Mr Osgood in his oral evidence, which work he estimated would take up to one day and cost in the order of $5,500. I am also satisfied that it is reasonable to require some work to be undertaken on the culvert over the creek crossing referred to above to ensure all weather twowheel drive vehicle access, estimated by Mr Osgood in his oral evidence to cost in the order of $7,000 to $10,000. This work would, on the evidence before me, upgrade the relevant section of the O'Briens Road to a standard that would enable safe all weather access by a twowheel vehicle to the site. 42I note that this conclusion relates to the development the subject of the present development consent and modification application, and is based on the evidence before me as to the increased usage likely to be generated by that development, and the evidence as to the condition of the portion of O'Briens Road leading to the applicant's property. 43Subject to a redrafting of condition 20 to reflect this conclusion and any consequent amendments required to conditions 22, 23, 24, 25 and 26, I am satisfied that the development to which the consent as modified relates is substantially the same development as that for which consent was originally granted as required by s 96(2)(a) of the Act. Having considered the relevant matters under s 79C(1) of the Act, I am satisfied that it is appropriate to modify the development consent by the deletion of conditions 21 and 27, the amendment of condition 52 as agreed now between the parties, and the amendment of conditions 20, 22, 23, 24, 25 and 26 to reflect my conclusions. 44The parties are directed to provide amended conditions to reflect the above findings, following which orders will be made in chambers. Linda Pearson 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. Decision last updated: 08 November 2011