Bopping v Palerang Council (No 2) [2011] NSWLEC 1322

Land and Environment Court New South Wales

Medium Neutral Citation: Bopping v Palerang Council (No 2) [2011] NSWLEC 1322 Hearing dates: 5, 26 October 2011 Decision date: 09 November 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Respondent to provide consolidated conditions electronically by close of business 15 November 2011 following which final orders will be made in chambers Catchwords: Development modification - erection of dwelling house - conditions requiring upgrading of access road Cases Cited: Bopping v Palerang Council [2011] NSWLEC 1319 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

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 applicant applied to modify the development consent by the deletion of conditions 20 - 27 inclusive and 52. Condition 20 required 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, to the standard of a Type 1 road. Condition 21 required the applicant to construct a Type C entrance from O'Briens Road to the property. Conditions 22 and 23 related to design and construction standard and design drawings. Condition 24 related to sediment and erosion control. Conditions 25 and 26 related to requirements for approval under s 138 of the Roads Act 1993. Condition 27 required the applicant to maintain the section of O'Briens Road from Chainage 960m to Chainage 1950m. Condition 52 required the applicant to consolidate Lots 358 and 359 into a single allotment. 3On 21 September 2010 the Council determined the modification application by amending conditions 24 and 25, and refusing to delete any of the remaining conditions. During the course of the hearing of this appeal from that determination, the parties reached agreement on the terms of an amended condition 52. The Council did not press for the retention of condition 27 or condition 21. 4In a judgment delivered on 6 October 2011 ( Bopping v Palerang Council [2011] NSWLEC 1319) I concluded: 41 I 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 two wheel 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 two wheel vehicle to the site. 5The parties were directed to redraft condition 20, and amend conditions 22, 23, 24, 25 and 26, to reflect my findings. The parties have reached agreement on amendments to conditions 24, 25 and 26. They have been unable to agree on conditions 20A, 20B, 20C, 20D, 22, and 23. 6The applicant's preferred version of conditions 20A, 20B, 20C and 20D is: 20A. The unformed part of O'Briens Road from Ch 690m to Ch 1950m, shall be inspected by an accredited and practicing civil engineer or surveyor who shall identify, design, and supervise the completion, by an experienced road maintenance crew (the members and equipment of which shall be nominated by the engineer or surveyor), the filling with gravel and compacting of any depressions, potholes or emerging depressions or potholes in wheeltracks within that chainage. The material used for filling shall be not less than DGB20 or other such base course material satisfying material properties as specified in AusSPEC #1 Development Specification Series, B2 Construction, Chapter C242. 20B. The watercourse crossing on O'Briens Road at approximate Ch940 shall be upgraded with a reinforced concrete pipe or box culverts (with suitable headwalls), of minimum internal (lateral) dimension of 375mm or equivalent ("equivalent" meaning with the same capacity overall but for example 2 pipes of lesser diameter but identical capacity). Backfill over the culverts and approaches will be DGB20 or other such base course material satisfying material properties as specified in AusSPEC #1 Development Specification Series, B2 Construction, Chapter C242. The design and construction of the culvert crossing shall designed, overseen and directed by the accredited and practicing civil engineer or surveyor. Alternatively a concrete causeway or ford can be constructed at approximate Ch940 at grade that is free draining and trafficable by a 2 wheel drive vehicle, i.e. the B85 Vehicle as defined in AS2890.1:2004. Concrete works shall be constructed in accordance with AusSPEC #1 Development Specification Series, B2 Construction, Chapter C271 - Minor Concrete Works. The minimum length of culvert or causeway (or width of carriageway over the watercourse) will be 4.88m. A flood height marker pole shall be erected to show the level of any water that may pass over either the culvert crossing or causeway in such place and manner as is directed by the accredited and practicing civil engineer or surveyor. 20C. The applicant shall engage an accredited and practicing civil engineer or surveyor to investigate, design, supervise and certify the satisfactory completion of site works required under condition 20A and 20B. 20D. Prior to the issue of an occupation certificate the applicant shall provide certification by an accredited and practicing civil engineer or surveyor that the roadworks required by conditions 20A and 20B have been completed in accordance with the requirements of those conditions. 7The Council's preferred version is: 20A. The unformed part of O'Briens Road from Ch 690m to Ch 1950m, shall be graded, proof rolled and areas of unsuitable material removed and replaced with approved road base material (DGB20 or other such base course material satisfying material properties as specified in AusSPEC #1 Development Specification Series, B2 Construction, Chapter C242). The minimum thickness of any replaced gravel shall be 150mm. The areas of unsuitable material which require gravel replacement will be compacted and finished in accordance with methods as detailed in AusSPEC #1 Development Specification Series, B2 Construction, Chapter C242. 20B. The watercourse crossing on O'Briens Road at approximate Ch940 shall be upgraded with a reinforced concrete pipe or box culverts (with suitable headwalls), of minimum internal (lateral) dimension of 375mm with a capacity equal to the 1 in 1 year flow rate from the upstream catchment draining to that point. Stormwater pipe/box culverts are to be constructed in accordance with AusSPEC #1 Development Specification Series, B2 Construction, Chapter C221/C222. Backfill over the culverts and approaches will be DGB20 or other such base course material satisfying material properties as specified in AusSPEC #1 Development Specification Series, B2 Construction, Chapter C242. Alternatively a concrete causeway or ford can be constructed at approximate Ch940 at grade that is free draining and trafficable by a 2 wheel drive vehicle, i.e. the B85 Vehicle as defined in AS2890.1:2004. Concrete works shall be constructed in accordance with AusSPEC #1 Development Specification Series, B2 Construction, Chapter C271 - Minor Concrete Works. The minimum length of culvert or causeway (or width of carriageway over the watercourse) will be 4.88m. The design of the creek crossing shall also involve a risk assessment to ensure that appropriate measures are put in place cater for the safety of motorists using the creek crossing structure when the structure is over topped by storm flows. Reason: To ensure Council's standards for residential access are met. 20C. The applicant shall engage an accredited and practising civil engineer to investigate, design, supervise and certify the satisfactory completion of site works required under condition 20A and 20B. Reason: To ensure that the design and construction of works complies with appropriate construction and risk management standards. 20D. Prior to the issue of an occupation certificate the applicant shall provide certification by an accredited and practising civil engineer that the roadworks required by conditions 20A and 20B have been completed in accordance with the requirements of those conditions. Reason: To ensure that the design and construction of works complies with appropriate construction and risk management standards. 8The applicant submits that condition 20A is consistent with my finding at [40] in the judgment delivered on 6 October 2011 that the upgrading of O'Briens Road in order to achieve safe two wheel drive access did not require regrading and resheeting of the road surface to the extent initially imposed in condition 20 or in the modified version of condition 20 proposed by Mr Osgood in exhibit 7. The applicant accepts that there needs to be a degree of certainty as to the supervision of the work. In relation to condition 20B, the applicant submits that it is not necessary to specify the flow rate as that would involve the expense of having an engineer design the culvert crossing. 9The Council submits that the work required in condition 20A is consistent with the evidence of Mr Van Osgood as to the cost of carrying out typical road maintenance as specified in para 2.5.8 of his report (Ex 3). The condition provides greater certainty as to what is actually required and is in accordance with standard engineering practice. The applicant's condition does not specify that topsoil and soft material needs to be removed and replaced with gravel, and does not specify a thickness of gravel. Potential or emerging depressions or potholes are typically identified using the methodology specified in the Council's condition, and areas of soft material cannot be identified without grading and proof rolling. 10In relation to condition 20B the Council submits that the "1 in 1 year design capacity" is the lowest tier of runoff or flow calculation used by engineers and its omission departs from standard stormwater practice. The 1 in 1 year flood design will determine the required size of the pipe or culvert, and the Council's condition specifies a pipe with a minimum 375mm diameter which will avoid the pipe being easily blocked by branches, leaves, grass etc being washed across the opening of the pipe; the provision of two smaller pipes would not be equivalent. 11The Council submits that it is not appropriate to allow a surveyor to design and supervise the road works specified in condition 20A, the construction of the culvert crossing in condition 20B, or the design, supervision, and certification of road work and stormwater management in condition 20C and condition 20D. 12I accept the Council's submission that its preferred version of condition 20A is consistent with the evidence provided by Mr Osgood in his report as to the work required to maintain the road to a suitable standard. At para 2.5.8 Mr Osgood identified that one days worth of plant and labour hire would be required, and construction plant "such as a Grader, Roller, Rigid Truck and a Water Cart all with operators" would be required. The estimate of one day, and a likely cost of $5,500, for that work is consistent with Mr Osgood's oral evidence concerning the work that he accepted would achieve adequate all weather access, summarised in paragraphs [40] and [41] of the earlier judgement. I accept the Council's submission that the condition needs to specify the standard required of the work and that it is preferable in the interests of certainty both for the applicant and the Council that the gravel thickness be specified. I agree with the Council that it is preferable that the road works be supervised by someone with appropriate qualifications, and that this should be an accredited civil engineer, and not a surveyor as proposed by the applicant. Condition 20A should be in the form proposed by the Council. 13In relation to condition 20B, I accept the Council's submission that the condition should provide clear guidance, and in the absence of any evidence to the contrary, I accept the submission that the 1 in 1 year design capacity is the appropriate capacity, and that the minimum pipe diameter should be 375mm. The references to the technical requirements of AusSpec #1 Development Specification Series are consistent with the requirements of the Council's Development Control Plan No 4 Rural 1(a) and assist in achieving certainty. However, the requirement for a risk assessment as proposed by the Council is potentially open ended, and as drafted it is not clear who is to determine what measures are to be put in place and who is to undertake any work required. It is not clear from the Council's submissions or the evidence that a risk assessment is required in addition to the specification in the condition of the design capacity and pipe diameter and the appropriate technical standards. I am not persuaded that it is reasonable to require more of the applicant than compliance with the generally applicable technical requirements and provision of warning information. Condition 20B should be re-drafted as follows: 20B. The watercourse crossing on O'Briens Road at approximate Ch940 shall be upgraded with a reinforced concrete pipe or box culverts (with suitable headwalls), of minimum internal (lateral) dimension of 375mm with a capacity equal to the 1 in 1 year flow rate from the upstream catchment draining to that point. Stormwater pipe/box culverts are to be constructed in accordance with AusSPEC #1 Development Specification Series, B2 Construction, Chapter C221/C222. Backfill over the culverts and approaches will be DGB20 or other such base course material satisfying material properties as specified in AusSPEC #1 Development Specification Series, B2 Construction, Chapter C242. Alternatively a concrete causeway or ford can be constructed at approximate Ch940 at grade that is free draining and trafficable by a 2 wheel drive vehicle, i.e. the B85 Vehicle as defined in AS2890.1:2004. Concrete works shall be constructed in accordance with AusSPEC #1 Development Specification Series, B2 Construction, Chapter C271 - Minor Concrete Works. The minimum length of culvert or causeway (or width of carriageway over the watercourse) will be 4.88m. A flood height marker pole shall be erected to show the level of any water that may pass over either the culvert crossing or causeway in such place and manner as is directed by the accredited and practicing civil engineer. 14I agree with the Council that the design, supervision and certification of the road works and watercourse crossing should be carried out by someone with appropriate qualifications, and agree with the Council's preferred conditions 20C and 20D. 15The Council presses condition 22 in the following terms: The works are to be designed and constructed to Aus-Spec #1 Development Specification Series as amended by Council. 16The applicant seeks to have condition 22 deleted. I agree with the Council that this condition mirrors the references to AusSPEC #1 in conditions 20A and 20B, and should be retained. 17The Council seeks to have condition 23 as follows: Engineering design drawings, and supporting information to AUS-SPEC #1 standards as amended by Council are required for the creek crossing structure to be constructed at Ch 940m. Engineering drawings are to include a note that "All work is to be constructed in accordance with AUS-SPEC#1 Development Specification Series as amended by Palerang Council, and the terms of the Development Consent." Submit drawings for Council for approval prior to issue of a s.138 (Roads Act) consent to undertake work on a public road. 18The applicant seeks to have this condition deleted. The Council submits that the design should be submitted for its approval prior to the issue of an approval under s138 of the Roads Act 1993, and that as the relevant roads authority it should be given the opportunity to approve the proposed work before it is carried out. The applicant accepts that approval is required under s138 of the Roads Act, and accepts condition 26 relating to the fees required for that approval. I agree with the Council that the proposed design should be provided as part of that process. 19In conclusion, conditions 20A, 20C, 20D, 22, and 23 should be in the form as drafted by the Council, and condition 20B should be imposed in the form set out at [13] above. 20The respondent is directed to provide consolidated conditions, including the conditions as agreed between the parties and conditions 20A, 20B, 20C, 20D, 22 and 23 in accordance with these reasons, in electronic form by close of business 15 November 2011, following which final orders will be made in chambers as follows: 1. The appeal is upheld. 2. Modification Application DEV.2010.0017/POD.2010.0074 to modify Development Consent DEV.2010.0017 for the erection of a manufactured dwelling on Lots 358 and 358 DP 755911 on O'Briens Road, Jembaicumbene, is approved subject to the conditions in Annexure A. 3.The exhibits are returned except for exhibits 1, 7 and A. 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: 09 November 2011