Artlong Pty Limited v Goulburn Mulwaree Council

[2008] NSWLEC 1494

Land and Environment Court

of New South Wales

CITATION:

Artlong Pty Limited v Goulburn Mulwaree Council [2008] NSWLEC 1494

PARTIES:

APPLICANT
Artlong Pty Limited

RESPONDENT
Goulburn Mulwaree Council

FILE NUMBER(S):

10808 of 2008

CORAM:

Hussey C

KEY ISSUES:

Section 96 Modification :- Rural road standards

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Rural Fires Act 1979
Roads Act 1993
Mulwaree Local Environmental Plan 1995

DATES OF HEARING:

10/12/2008

 
DATE OF JUDGMENT: 

19 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Seton, solicitor
of Marsdens Law Group

RESPONDENT
Mr M. Baird, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

19 December 2008

10808 of 2008 Artlong Pty Limited v Goulburn Mulwaree Council

JUDGMENT

Background.

1 This appeal was lodged against the deemed refusal of a section 96 application to modify a development consent for a 4 lot rural subdivision at 2121 Caoura Road, Tallong.

2 The site has an area of 120.3ha. It is situated at the eastern end of Caoura Road and relies a short section of approximately 1km of Crown Road for access. The lead in road to the property is substantially unsealed.

3 The approved subdivision allows the creation of the following lots:

• Lot 1 (48.13ha) – consisting of 2 parts because it is split by a right-of-way that will be used to provide access to this lot and Lots 2 and 3.
• Lot 2 (10ha) – located at the eastern portion of the land
• Lot 3 (49.15ha) – located on the southern portion of the land.
• Lot 4 (10.03ha) – located on the north western portion of the land and its access is via a separate right-of-way.

4 Insofar as a number of issues were identified for the appeal, these were mostly resolved by conferencing by the parties. The outstanding issue concerned the standard of road construction for the new internal access road and the upgrading of the lead in section of Caoura Road.

5 However, after a further site inspection and conferencing the parties agreed to consent orders.

Planning controls

6 The site is subject to the provisions of the Mulwaree Local EnvironmentalPlan 1995, under which it is in the 1(a) – (General Rural) zone. The proposal is permissible with consent.

7 The following controls also apply:

• Draft Goulburn Mulwaree Local Environmental Plan 2008.
• Goulburn Mulwaree DCP 12.
• Goulburn Mulwaree DCP No 2 – Rural Subdivision for dwelling houses
• Roads Act 1993.
• Rural Fires Act 1997.

The evidence

8 The parties agreed to the appointment of Mr G Todd as the single expert to assess the engineering road standards. Accordingly he considered the following 3 road sections:

i) Internal accessway to Lot 4.
ii) New internal road.
iiii) Crown Road upgrading.

9 For this assessment, Mr Todd considered the local topographical constraints and the need to provide a reasonable standard for the access roads in terms of their usage function, convenience, safety and longer-term maintenance. He also considered the impact on vegetation arising from changes to the existing road alignment.

10 In particular he addressed the requirements of the Rural Fire Service to provide adequate standard roads to enable service vehicle access in emergency situations. The discussions focussed on Figure 4.5 in the Planning for Bush Fire protection Manual, which indicates that a 6m wide cross section is required to allow 2 vehicles to pass.

11 Consequently the paries agreed that:

• Crown Road; to be constructed with a 6m wide formation and 4m wide seal, in accordance with Council’s rural road standards. Subject to soil testing of the sub grade, the 1m wide shoulder areas may be of reduced pavement depth.
• New internal road; to be of similar 6m wide construction and include a 12m (minimum) radius in the cul-de-sac head.
• Lot 4 access; The ROW to formed and gravel surfaced, 4m wide with an additional 1m wide cleared strip on each side incorporating adequate drainage structures and erosion control measures.

Conclusion

12 Having considered the evidence, I am satisfied that the agreement by the parties to the road standards for the development roads is reasonable, so that satisfactory access is initially provided by the developer to the estate that represents a reasonable standard in terms of safety and future maintenance considerations.

13 The other issues raised have been addressed to the parties satisfaction and accordingly I am satisfied the modification relates to the same development, there a no objections and the merits have been considered and agreed as aforementioned. Therefore the consent orders are granted.

Court orders

14 The Court orders by consent:

1. The Appeal is upheld in part.
2 Conditions 4, 6, 7, 9, 12, 41, 59, 65, 66 and 67 of the Development Consent granted to Development Application No. 94/0607/DA by the Respondent on 24 September 2007 for a 4 lot staged subdivision of the land known as Lot 743 in Deposited Plan 740895 (No. 2121) Caoura Road, Tallong NSW are modified pursuant to section 96 of the Environmental Planning and Assessment Act 1979 as shown in Annexure A to these orders.
3 The exhibits may be returned except 2.

___________________

R Hussey
Commissioner of the Court
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