Barr Property and Planning Pty Ltd v Cessnock City Council

[2022] NSWLEC 1127

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barr Property and Planning Pty Ltd v Cessnock City Council [2022] NSWLEC 1127

Hearing dates:

17-18 November 2021, 8-9 February 2022

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court Orders that:

1) The appeal is dismissed.

2) The development application number 8/2020/123/1 for a two lot subdivision of the land at 1134 John Renshaw Drive, Black Hill (Lot 1 in DP 1260203) is refused.

3) The exhibits are returned, except for Exhibit A.

Catchwords:

APPEAL – development application – two-lot subdivision – no works or use proposed – one lot landlocked – whether defined form of legal access should be provided as part of subdivision – whether adequate traffic assessment

Legislation Cited:

Cessnock Local Environmental Plan 2011, cll 2.3, 4.1

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

Land and Environment Court Act 1979, s 64

National Land Transport Act 2014 (Cth)

Roads Act 1993, ss 6, 138

Rural Fires Act 1997, Pt 4, Div 2

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021

State Environmental Planning Policy (Infrastructure) 2007, cl 101

Cases Cited:

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Butler v Muddle (1995) 6 BPR 13,984

Cospak International Pty Ltd v Mulwaree Shire Council [2002] NSWLEC 200

Farah v Warringah Council [2006] NSWLEC 191

Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24 Heavens Door Pty Ltd v Hillpalm Pty Ltd (2001) 116 LGERA 138; [2001] NSWLEC 116 Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86; [2002] NSWLEC 17

Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349

Stokes v Waverley Council (No 2) (2019) 242 LGERA 392; [2019] NSWLEC 174

Texts Cited:

Cessnock Development Control Plan 2010

Category:

Principal judgment

Parties:

Barr Property and Planning Pty Ltd (Applicant)
Cessnock City Council (First Respondent)
Transport for NSW (Second Respondent)
Black Hill Industrial Pty Ltd (Third Respondent)

Representation:

Counsel:
J Smith (Applicant)
N Eastman (First Respondent)
A Hemmings (Second Respondent)
C Novak (Third Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Sparke Helmore Lawyers (First Respondent)
Transport for NSW (Second Respondent)
MBM Legal (Third Respondent)

File Number(s):

2020/331104

Publication restriction:

No

Judgment

1. COMMISSIONER: A large greenfield area to the south of John Renshaw Drive and west of the M1 Pacific Motorway is identified for industrial development and is known as the Emerging Black Hill Precinct. The area straddles the local government areas of Newcastle City Council and Cessnock City Council and is within the Beresfield-Black Hill ‘Catalyst Area’ identified in both the Greater Newcastle Metropolitan Plan 2036 and the Hunter Regional Plan 2036. That part of the land within the local government area of Cessnock City Council (the Council) is the subject of a site specific development control plan for its staged development. Barr Property and Planning Pty Ltd (Barr Property) seeks development consent for a two-lot subdivision of one of the lots within that land, known as 1134 John Renshaw Drive, Black Hill, and lodged a development application with the Council on 28 February 2020. The stated purpose of the two-lot subdivision is to mortgage one of the subdivided lots to fund development in accordance with the site specific development control plan. Following the expiry of the period after which a development application is deemed to be refused, Barr Property commenced this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The design of the proposed subdivision results in proposed Lot 1 being landlocked, without frontage to a public road and without any defined means of legal access from a public road. For the reasons set out below, I have determined that development consent should not be granted in circumstances where the proposed subdivision of land does not include a means of legal access by a vehicle from a public road to each of the subdivided lots. Whilst Barr Property advanced two different conditions of consent for the creation of easements as a means by which legal access could be provided, I have below found that the conditions do not adequately provide for appropriate legal access, and cannot be adequately assessed.

The site and its context

3. The site is 214.4ha in size and is known as Lot 1 DP 1260203. It is dissected by a long, narrow lot, Part Lot 119 DP 1154904 (Lot 119) which accommodates a Hunter Water Corporation (HWC) water supply pipeline. Lot 119 does not form part of the development application. Another long, narrow lot, known as Lot 13 DP 1097621 (Lot 13) runs alongside John Renshaw Drive and separates the eastern part of the site from John Renshaw Drive. An aerial view of the site is contained at Figure 1.

4. There are no existing easements for access over either Lot 13 or Lot 119. The site has no formal access points that allow access onto the site for a vehicle from John Renshaw Drive. Whilst there is a disused gate in the fencing fronting John Renshaw Drive that is of a width that allows vehicle access, there is no driveway crossing from the road to the gate.

5. An inspection of the site from within its boundaries was not undertaken at the site view, as the owner of the land did not permit access. Based on the documents filed in the proceedings, the site is a mix of grassy paddocks used for low-scale grazing purposes and tree covered areas. There are some internal driveways within the site and areas that have been cleared in the past to accommodate various rural activities. The site was previously used for poultry farming, but the buildings used have since been demolished.

6. The eastern boundary of the site is the boundary of the local government area of Cessnock. The land beyond that boundary is owned by Black Hill Industrial Pty Ltd (BHI), and also forms part of the Emerging Black Hill Precinct. Development consent for a 62-lot subdivision of that land was granted by Newcastle City Council on 12 August 2021, which forms stages 1A and 1B of the development of the BHI site.

7. Vegetated bushland surrounds the site with an exception to the north where the site adjoins John Renshaw Drive. A former open cut mine, which ceased operation in 2016, is located to the north on the other side of John Renshaw Drive.

8. To the south of the site, adjacent to Black Hill Road, are a number of rural residential properties which are in the same ownership as the site, such that informal access for the maintenance of the site is obtained through the rural residential land. A development application for subdivision of the rural residential land has been lodged with the Council.

9. Barr Property has also lodged a development application for a 40-lot subdivision of the site, which is also on appeal before the Court, in separate appeal proceedings.

10. John Renshaw Drive is a declared controlled access road by Government Gazette, but the extent that is a controlled access road is only that which falls within the Newcastle City Council local government area. John Renshaw Drive is classified as a main road under the Roads Act 1993 and is also a State road, and Transport for New South Wales (TNSW) is the owner and roads authority for John Renshaw Drive pursuant to the Roads Act. The M1 Pacific Motorway is around 1200m to the east of the site and is classified as a freeway under the Roads Act, and is a state road. TNSW is also the roads authority for the M1 Pacific Motorway. The M1 Pacific Motorway and John Renshaw Drive in the vicinity of the site also form part of the National Land Transport Network determined pursuant to the National Land Transport Act 2014 (Cth) and are therefore of national significance.

The Black Hill Employment Area staging and structure plan

11. Part E.18 of the Cessnock Development Control Plan 2010 (CDCP) concerns the site specific development controls for the Black Hill Employment Area, which the site forms part of. Section 18.1.9 sets out a staging plan for the development of the area, which is shown at Figure 2.

12. The site previously formed part of Lot 1131 DP 1057179, which was the entire area of the Black Hill Employment Area within the local government area of the Council (in addition to the lot owned by HWC that bisects the site). On 26 March 2020, by the registration of deposited plan 1260203, Lot 1131 DP 1057179 was subdivided into two lots. Lot 1 in that subdivision is the site, which contains the area identified for industrial development with a portion of it zoned E2 Environmental Conservation, and Lot 2 is the area zoned for environmental living and has frontage to Black Hill Road.

13. Part E.18 also includes a structure plan for vehicular access to the Black Hill Employment Area from John Renshaw Drive. It includes two vehicular access points, one of which is located at the junction of the BHI site and the site in the present proceedings, and the other located to the west and opposite the location of the disused open cut mine. They are shown in Figure 3.

14. However, the development consent for the 62-lot subdivision in stages 1A and 1B of the BHI site, granted by Newcastle City Council on 12 August 2021, does not locate an access road where it is shown in Figure 3. Instead, the approved subdivision plan has an access road 140m east of the common boundary of the BHI site and the site the subject of these proceedings, with plans showing an internal road which, once constructed as part of Stage 1A of the BHI site development, will connect the site to the BHI site. That is depicted in the plan of subdivision below in Figure 4 at [18].

The development application

15. The development application before the Court proposes the creation of two lots, as follows:

• Proposed Lot 1 (comprising 51.1 hectares) which largely contain stages 1 and 2 from the staging plan. Lot 1 does not have road frontage as it is separated from John Renshaw Drive by Lot 13.

• Proposed Lot 2 (comprising 163.3 hectares) which contains the remaining 4 stages of industrial development and the conservation area in the staging plan. Proposed Lot 2 has frontage to John Renshaw Drive.

16. The proposed development does not include any physical works and is what Barr Property describes as a ‘paper subdivision’. No means of legal access to Lot 1 is proposed in the development application or the plan of subdivision.

17. Proposed Lot 2 will have frontage to John Renshaw Drive, but no intersection works are proposed by the development application.

18. The proposed plan of subdivision is at Figure 4.

The parties to the appeal

19. The Council is the relevant consent authority and the first respondent to the appeal. In January 2021, TNSW was joined as the second respondent pursuant to s 64 of the Land and Environment Court Act 1979.

20. On 22 October 2021, by order of the Court, BHI was joined as the third respondent to the appeal.

The issues on the appeal

21. The respondents raised a number of contentions, upon which they say the appeal ought to be dismissed and development consent refused. They contend that the application does not adequately demonstrate that there will be appropriate access to the subdivided lots. In particular, the proposed development does not include any access from a public road or internal road access, and proposed Lot 1 will be unable to be accessed from a public road.

22. The respondents also contend that the application does not demonstrate that the safety, efficiency and ongoing operation of classified roads, including John Renshaw Drive, will not be adversely affected by the development. The respondents say that the traffic impacts of the proposed subdivision could result in multiple access points onto John Renshaw Drive, and that the external traffic impacts of such access must be assessed in accordance with the requirements of s 4.15(1) of the EPA Act.

23. Further, BHI also contends that the application does not demonstrate that there will not be a material adverse impact on the intersection to be constructed by BHI and on further development of the land owned by BHI as a result of the two-lot subdivision.

The planning controls

24. The site is zoned E2 Environmental Conservation and IN2 Light Industrial, pursuant to the Cessnock Local Environmental Plan 2011 (CLEP 2011), as shown in Figure 5. Figure 5 also shows the E4 Environmental Living zoning to the south, and the zoning of the BHI site to the east.

25. On 1 December 2021, an amendment to the Standard Instrument (Local Environmental Plans) Order 2006 was made by the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021, which changed the E2 Environmental Conservation zone to the C2 Environmental Conservation zone. However, cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 provides that amendments “made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order.”

26. The whole of proposed Lot 1 is in the IN2 zone. Proposed Lot 2 contains the area of the site that is zoned E2 as well as the remainder of the IN2 zoned land.

27. Clause 2.3 of the CLEP 2011 requires that the Court, in exercising the functions of the consent authority, have regard to the objectives of the zone when considering an application for development within the zone. The objectives of the E2 land are as follows:

•  To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

•  To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

28. The objectives of the IN2 land are:

• To provide a wide range of light industrial, warehouse and related land uses.

• To encourage employment opportunities and to support the viability of centres.

• To minimise any adverse effect of industry on other land uses.

• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

• To support and protect industrial land for industrial uses.

29. Clause 4.1 of the CLEP 2011 establishes the minimum subdivision lot size development standards, with which the proposed development complies.

30. Clause 101 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to land that has frontage to a classified road and precludes development consent from being granted unless the consent authority is satisfied of the matters in cl 101(2). Clause 101 provides:

101 Development with frontage to classified road

(1) The objectives of this clause are—

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

31. As set out above, the CDCP applies to the site, including site specific development controls in Part E.18. Section 18.1.7 sets out the objectives and controls with respect to the concept structure plan, which are as follows:

“Objectives

1. Ensure development accords with the overall strategic vision for the Black Hill Employment Area as outlined in the Concept Structure Plan.

2. Ensure development controls in regard to road hierarchy within the Cessnock LGA and Newcastle LGA are generally consistent. Refer to Figure 3 that shows two adjoining sites and LGA boundary.

3. Ensure the road hierarchy acknowledges the adjoining industrial land in the Newcastle LGA (Figure 3) to achieve the following outcomes:

a. the number of intersections on John Renshaw Drive will be determined to minimise impacts of road network efficiency, with a preference of a shared intersection on the common boundary between the Newcastle and Cessnock LGA;

b. there are suitable road connections between the two precincts to reduce traffic impacts on John Renshaw Drive;

c. a staging plan for the timely and efficient release of employment land making provision for necessary infrastructure and sequencing; and

d. an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists.

4. The location of intersections with John Renshaw Drive will have regard to the proposed Pacific Motorway to Raymond Terrace (M12RT) upgrades.

Controls

(a) Development is to be generally consistent with the Concept Structure Plan at Figure 2.

(b) The location of the easternmost access to John Renshaw Drive:

i. will be prioritised at the common boundary between the subject site and the adjoining industrial land (in the Newcastle LGA); and

ii. will be supported by a Traffic Impact Assessment that demonstrates the access is capable of managing the relevant traffic generation from the subject site and the adjoining industrial land (in the Newcastle LGA).

(c) Before determining development applications for traffic generating development or subdivision of land, a Traffic Impact Assessment will be provided to the satisfaction of the consent authority.

(d) Subclause (c) does not apply to any of the following development:

i. a subdivision for the purpose of a realignment of boundaries that does not create additional lots;

ii. a subdivision of land if any of the lots proposed to be created is to be reserved or dedicated for public open space, public roads or any other public or environmental protection purpose;

iii. a subdivision of land in a zone in which the erection of structures is prohibited; or

iv. proposed development on land that is of a minor nature only, if the consent authority is of the opinion that the carrying out of the proposed development would be consistent with the objectives of the zone in which the land is situated.”

32. Section 18.1.10 concerns access to and within the Black Hill Employment Area, and contains the following objectives and controls:

“Objectives

1. Facilitate safe access for all vehicles to and from the site.

2. To provide a simple and safe movement system for heavy vehicles, private vehicles and public transport within the site.

3. To minimise the cumulative impact of traffic from the industrial subdivision on John Renshaw Drive

4. Ensure that all roads can accommodate large vehicles, including B Doubles.

Controls

(a) Access to the Black Hill Employment Area shall be provided generally in accordance with the Concept Structure Plan at Figure 2.

(b) All internal roads will be designed with reference to Chapter D.1 Subdivision Guidelines and Chapter D.3 Industrial Development of the Cessnock DCP and in accordance with Council’s Engineering Design Guidelines.

(c) The collector road network shall allow for future access to the east, including the provision of rights of carriageway where necessary.

(d) Provision for on road cycleways shall be made within the Collector Road network.

(e) Adequate directional signage is required at the vehicular entries and exits of each site.

(f) An Internal Movement Plan (IMP) is to be submitted with a development application for any primary building on a site. The IMP is to clearly identify:

i. heavy vehicle movement routes;

ii. private vehicle movement routes and parking areas;

iii. pedestrian access routes; and

must include turning circles diagrams for the largest vehicle that is reasonably expected to enter the site.

(g) Development applications for each site must demonstrate that all vehicles can enter and exit the allotment in a forward direction.”

…

33. With respect to the E4 zone, which is immediately to the south of the site, Section 18.1.18 sets out controls that preclude accessing the IN2 zone from the E4 zone on a permanent basis:

“(a) No permanent access to the IN2 Light Industrial Zone will be granted from the E4 Environmental Living zoned land.

(b) No permanent access from Black Hill Road to land zoned IN2 Light Industrial will be granted.”

34. In addition to the site specific controls in Part E.18, Part D.1 of the CDCP sets out general guidelines for development applications for the subdivision of land. The principal objectives include the following:

“a) ensure that the potential impacts of all subdivisions and subsequent development take account of the principles of environmental sustainability

…

g) further long term planning objectives contained in CLEP by the encouragement of lot creation consistent with those objectives;

h) ensure adequate vehicular access from the public road system to each new lot;

i) ensure all proposed lots are physically capable of development;

j) establish a consistent and coordinated approach to the creation of residential, rural and commercial / industrial lots.”

35. Section 1.3.1 sets out the general development principles with respect to subdivision, which are as follows:

“(i) the ratio of depth to frontage of each allotment to be created by the subdivision shall be determined having regard to the purpose for which it is to be used and the need to minimise the creation of vehicular access points to any road and particularly to main or arterial roads;

(ii) the subdivision shall not to any material extent, create or increase the potential for ribbon development along any road, particularly a main or arterial road;

(iii) adequate all weather flood-free access shall be available to each allotment to be created by the subdivision and located so as to minimise the risk of soil erosion;

(iv) a subdivision shall be designed to maximise the retention of natural vegetation in any subsequent development, to ensure that any buildings likely to be erected on allotments created by the subdivision are able to be sufficiently separated and to minimise the potential for significant alterations to the natural land form in any subsequent development by way of construction of access driveways, excavations, filling and the like;

(v) each allotment to be created by the subdivision shall include flood-free land for building sites and in rural areas for the movement of stock during floods;

(vi) each allotment to be created by the subdivision shall provide potential building sites with minimum risk of damage by bushfires or soil instability;

(vii) adequate soil erosion control measures shall be incorporated in the subdivision, including measures to be carried out prior to the subdivision taking place; and

(viii) allotments intended for use for pastoral purposes shall be of sufficient size to ensure an adequate water supply for stock unless water can otherwise be provided.

(ix) the subdivision shall not create or increase the number of allotments having direct access to a watercourse”

36. Section 1.8 of Part D.1 then concerns the specific requirements for subdivision in the IN2 and IN3 zoned land. Section 1.8.2 concerns road layouts and access points, and includes the following performance criteria:

“a) Road layouts and access points shall be designed to provide for the safe and efficient movement of traffic to and from each proposed lot within the industrial areas.

b) Access from individual lots to major roads shall be minimised. The use of minor roads for such access is desirable wherever practicable.”

Expert evidence

37. Expert evidence on the town planning issues was given by Mr Stephen Barr, a town planner employed by Barr Property, Mr Stephen O’Connor, a town planner engaged by the Council, and Mr Anthony Rowan, a town planner engaged by TNSW.

38. Mr Barr, Mr Rowan and Mr O’Connor agree that it is typical for a subdivision for the creation of super-lots, which allow for further subdivision in the future, to include a legal means of access to a public road for each subdivided lot. They agree that, as the proposed lots have the potential to be developed as a single lot or to be further subdivided, the two proposed lots require the provision of legal access as part of the proposed subdivision.

39. However, there is disagreement on whether vehicular access required for the proposed lots can be limited to address the current undeveloped condition of the land or is required to address its future industrial potential. Similarly, they disagree on when future public road access should be provided to proposed Lot 1. Whereas Mr Barr is of the view that access is only required to be provided at the time of the future development of proposed Lots 1 and 2. Mr Rowan and Mr O’Connor opine that it should be required to be identified on the proposed subdivision plan, and provided, prior to the registration of the subject plan of subdivision. This is considered below.

40. Expert evidence on the traffic impact was given by Mr Brett Maynard, a traffic engineer engaged by Barr Property, Mr Alen Krljic, a traffic engineer engaged by TNSW, and Mr Tim Rogers, a traffic engineer engaged by BHI.

41. Mr Maynard, Mr Krljic and Mr Rogers agree that reliance on the (relocated) eastern signalised intersection on the BHI site frontage would not be a desirable outcome for the development of the site. Mr Maynard notes that this concern does not arise from, and is not exacerbated by the 2-lot subdivision, and that he has no concerns regarding the access to the subdivided lots given that the development application is for a paper subdivision and informal access can continue for maintenance purposes.

42. Mr Krljic concedes that assessment of the broader road network impacts is not necessarily required for the 2-lot subdivision and that traffic analysis to support the proposed development could be limited to identifying a feasible site access strategy which will not adversely impact traffic safety and the efficiency of John Renshaw Drive. Mr Rogers instead opines that the development potential of the site is the same, whether it is a two-lot subdivision or a 40-lot subdivision, such that the proposed development for a 2-lot subdivision needs to demonstrate that there will not be a material adverse effect on the BHI access to John Renshaw Drive or on further development on the BHI land.

43. The extent of the traffic impact assessment required for the proposed development is considered below.

Adequacy of access

44. TNSW and the Council contend that there is insufficient information as to the proposed access to each of the two lots created by the proposed subdivision.

45. The primary access for the former use of the site, which was within Lot 1131, was from Black Hill Road. However, the site is now separated from Black Hill Road by Lot 2 of DP 1260203, which is the land zoned E4 Environmental Living. The existing legal access to the site is by use of the public road frontage to John Renshaw Drive either side of Lot 119, although there is no vehicular entrance constructed to allow vehicular access from John Renshaw Drive to the site.

46. Proposed Lot 2 has direct frontage to John Renshaw Drive, and therefore has the potential to achieve legal access to John Renshaw Drive. Proposed Lot 1 is landlocked as a result of Lot 13. There is a disused gate on the boundary of proposed Lot 2. Section 6 of the Roads Act gives the owner of the land adjoining, a public road an entitlement “as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road”. Nevertheless, the construction of a driveway crossing would require the consent of TNSW, pursuant to s 138(1) of the Roads Act.

47. There is no access proposed as part of the proposed development, and no proposal to provide legal access between proposed Lot 1 and John Renshaw Drive, either over Lot 13 or over proposed Lot 2 and Lot 119.

48. There is currently ongoing maintenance of the site, which is undertaken about every 3 weeks using a 5-tonne truck and a trailer, which is used to transport a ride-on mower. There is also general maintenance undertaken once every 2-3 months for general repairs, which is done using a 4WD to access the site.

49. Mr Barr, Mr Rowan and Mr O’Connor agree that if proposed Lot 1 is landlocked following the subdivision, it could be isolated and/or sterilised from achieving the future development potential identified for the land, and there would be no certainty regarding its ability to be developed for future industrial purposes. They agree that this is an unacceptable arrangement for the purposes of the proposed development.

50. Whilst there is a road layout and access to the site proposed in a separate development application for a 40-lot subdivision, which is before the Court on appeal in separate proceedings, Mr Barr, Mr Rowan and Mr O’Connor agree that there is no nexus between the proposed development before the Court in the present appeal and the 40-lot subdivision in separate proceedings. They agree that the traffic impact assessment for the 40-lot subdivision (which is in dispute in the other appeal proceedings) does not form part of the subject development application and has no nexus to it.

51. As such, Mr Barr, Mr Rowan and Mr O’Connor agree that there is a need for some level of access to each of the proposed lots, but disagree on the extent of that access and whether the vehicular access that ought to be provided is required to accommodate the future industrial development or can be confined to addressing the current undeveloped condition of the land.

52. Mr Barr, in his evidence, has advanced three different options for legal access to the subdivided lots from a public road. Those three options can be summarised as follows:

1. A temporary easement 10m wide for access from Black Hill Road over the lot to the south of the site, over Lot 119 and proposed Lot 2. The easement over the lot to the south of the site (Lot 2 DP 1260203) would be for the benefit of both proposed lots, and the easement over Lot 119 and proposed Lot 2 would be for the benefit of proposed Lot 1. This option provides the opportunity to maintain the current access to the site for the ongoing maintenance of the site, and the easements would be extinguished upon an alternate access being provided to the proposed lots.

2. An easement 23m wide for access from John Renshaw Drive over Lot 13 and through Lot 1 to proposed Lot 2, and also over Lot 119. This provides a loop road through the site, similar to the structure plan in the CDCP. The location of the western access from John Renshaw Drive aligns with that in the CDCP.

3. An easement 23m wide for access from John Renshaw Drive over Lot 13 and through proposed Lot 1 to Lot 2 and the BHI site. This provides a right of way that, through an easement that burdens proposed Lot 1 and Lot 13, connects John Renshaw Drive, proposed Lot 2 and the BHI site.

53. Draft plans that show, in a plan of subdivision, each of the three options above were annexed to the joint report and were in evidence in the proceedings.

54. However, instead of advancing one of these three options as part of an amendment to the proposed development, Barr Property instead relies on the imposition of a condition of consent proposed by the Council in its without prejudice conditions, which provides for reciprocal easements over the whole of proposed Lots 1 and 2, as well as an easement over Lot 119. The proposed condition of consent, as amended by Barr Property, is as follows:

“5.   Reciprocal Rights of Carriageway and Easements

Reciprocal rights of carriageway, easements for access, and easements for services must be created over the whole of Lot 1 in favour of Lot 2 and over the whole of Lot 2 in favour of Lot 1 , and over Lot 119 DP 1154904 and Lot 13 DP1097621 in favour of Lot 1 and Lot 2 to the satisfaction of Council. In addition to the owner of the land benefited by the easement, Council is to be a party whose consent is needed to release or vary easements. The subdivision plan is to be amended to show the locations of the required easements. The amended subdivision plan together with an 88B instrument setting out the terms of easements as required by this condition, must be submitted to Council for approval prior to the issue of the SC.”

The submissions that the access is inadequate

55. The respondents contend that it is not sufficient for Barr Property to rely on the development application being a “paper subdivision” in order to avoid or delay dealing with the issue of access to the subdivided lots. They point out that, even if the two lots are to remain in an undeveloped state at present, access is required not only for maintenance of the two lots, but also to meet the bush fire hazard reduction provisions in Div 2 of Pt 4 of the Rural Fires Act 1997 (‘Rural Fires Act’), and to carry out preparatory work for development, such as valuation, surveying and preliminary planning matters. The respondents have made a number of submissions as to why the access provided in the reciprocal easements in the conditions of consent is inadequate, and why the means of access to each of the proposed lots ought to be specified with sufficient particularity prior to the grant of consent.

56. Firstly, TNSW submits that there is a lack of finality with imposing a condition of development consent that does not specify the vehicular access to the site, as this defers consideration of a relevant matter. TNSW submits that the deferral of the question of suitable access would result in a consent that is not final and therefore invalid. In support of this, TNSW refers to the decision of Talbot J in Farah v Warringah Council [2006] NSWLEC 191 (‘Farah’), in which his Honour found that the imposition of a deferred commencement condition that allowed the final access arrangements “left to be decided by the council at the later time of approving the TMP” rendered the consent invalid as it “failed to finally consider and determine a relevant matter” (at [61] and [66]).

57. Secondly, and similarly, both TNSW and the Council submits that the reciprocal easements provide no certainty as to how the future access will be obtained, given their generality, which means that the condition is uncertain.

58. Thirdly, both TNSW and the Council submit that reciprocal easements across the entirety of proposed Lots 1 and 2 may have the effect of sterilising the land for development if ownership of the two lots is fragmented. Mr Rowan’s evidence is that this would result in a “stalemate”, which would prevent either owner for proposed Lot 1 and Lot 2 to develop anything and therefore undermine the strategic planning for the Black Hill Employment Area. TNSW submits that this is the antithesis of economic and orderly development for the purpose of an assessment under s 4.15(1)(c) of the EPA Act.

59. Fourthly, TNSW submits that, even if the easements are created, there is no information to satisfy the Court that physical access can be achieved from proposed Lot 2 over Lot 119 through to proposed Lot 1. That is, there is no evidence to demonstrate that physical access to either lot can actually be achieved, even if there is a legal means of access through an easement.

60. Fifthly, TNSW submits that, with respect to the easement over Lot 119 and Lot 13, there is an absence of owner’s consent, contrary to the provisions of cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000. TNSW submits that this is a jurisdictional matter that prevents the grant of development consent subject to that condition.

61. Further, the Council submits that the failure to specify the manner of access is contrary to the subdivision guidelines in the CDCP. The aims and objectives of subdivision in Part D.1 includes to “ensure adequate vehicular access from the public road system”, and the principles include to “minimise the creation of vehicular access points to any road and particular to main or arterial roads”. A further control is for “adequate all weather flood-free access shall be available to each allotment to be created by the subdivision”. Part E.18 of the CDCP also requires that development is consistent with the concept structure plan, including the location of vehicular access to the lots. As such, the Council submits that the proposed development does not develop the land in accordance with the concept structure plan and with the provisions of the CDCP.

62. Finally, BHI submits that the absence of a proper traffic solution for access to the subdivided lots will result in additional constraints on the BHI land, as the subdivided lots will rely on access via the BHI land. BHI submits that this could compromise the ability to develop the BHI land in accordance with the concept plan. In that context, BHI submits that, without a plan for access to the proposed lots, there is no assessment of the impacts of the proposed development on the BHI site and its development, whereas the impacts of a proposed development is a mandatory matter for consideration pursuant to s 4.15(1)(b) of the EPA act.

The applicant’s position that access is not required and reciprocal easements are adequate

63. Barr Property submits that, in circumstances where there is no active use on the site and no proposed use of the site, access to the subdivided lots is not required.

64. Barr Property relies on the purpose of the development application, which is for the creation of super lots to permit finance to be obtained in an orderly way so that development in accordance with the CDCP staging plan can be achieved for the creation of the industrial lots. This is explained in the individual expert report of Mr Barr, in the following way:

“Under the current proposal, both lots 1 and 2 will be transferred to the developer of the site. It is understood that lot 1 will be paid for by the developer. Lot 2, this land will continue to be mortgaged by the current landowner, essentially allowing a form of finance to be provided over the balance of the site while protecting the landowners interest in the land. Lot 1 will then be burdened by a separate mortgage from a separate lender to allow finance to be provided for the ownership of the land and to deliver the works required to deliver the further subdivision of lot 1.”

65. Accordingly, Barr Property’s primary position is that the development consent for the two-lot subdivision would not approve any use that requires interim or informal access, and that none is required. It says that any access will form part of future development applications for the subdivision of the land into the development lots.

66. Secondly, Barr Property submits that the requirement for legal access to each of the lots is met by the condition requiring the imposition of reciprocal easements. Barr Property says that, as a result of the imposition of that condition, at the time the new Lot 1 is created, an easement will be in place which means it would not be legally land locked and would have a means of legal access. Barr Property says that an approach is consistent with the long standing authority in Heavens Door Pty Ltd v Hillpalm Pty Ltd (2001) 116 LGERA 138; [2001] NSWLEC 116 and Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86; [2002] NSWLEC 17.

65. Barr Property submits that the consent of the owners of Lots 13 and 119 are not required for the imposition of a condition requiring the creation of an easement, as those lots do not form part of the land to which the development application relates. In support of this submission, it relies on the decision of the Court in Stokes v Waverley Council (No 2) (2019) 242 LGERA 392; [2019] NSWLEC 174 at [70], in which Robson J stated:

“For the purpose of landowner’s consent to a development application, there is a distinction between the works the subject of the relevant development application, and off-site works that may be carried out pursuant to conditions of consent: s 4.17(1)(f) of the EPA Act.”

68. Barr Property says that, if interim access is required to the subdivided lots contrary to its primary position, the issue can be resolved if required through the incorporation of an additional condition of consent that reflects Mr Barr’s first option for the provision of access from Black Hill Road. The proposed wording of such a condition would be as follows:

“1. Temporary easement for maintenance vehicles over the existing bitumen driveway

Right of carriageway will be created over existing lot 2 in DP 1260203 in favour of proposed lot 1 and lot 2 over the existing bitumen driveway. The appropriate notation will be placed on the plan of subdivision, and an 88B instrument setting out the terms of the easement as required by this consent shall be submitted to council. In addition to the owners of the land benefitted, Council is to be a party whose consent is needed to release or vary the easement.

The terms of the easement will be:

• The easement will be to provide access for maintenance vehicles only.

• The easement will be temporary and will be extinguished upon proposed lot 1 and 2 gaining alternate access arrangements in the form of an easement providing access to John Renshaw Drive or via a public road.”

69. In support of this route for vehicular access, Barr Property relies on the evidence of Mr Rogers, given in cross-examination, that there already exists a good bitumen road from the edge of the current site to Black Hill Road across Lot 2, which is the land zoned E4 Environmental Living. Mr Rogers agrees that such an easement would resolve his concerns with respect to the provision of legal access to each of the lots.

70. In addition, Barr Property submits that the lack of an easement for access and the absence of vehicular access maintains the “status quo” for the site, which was approved for subdivision by the Council in DA 8/2018/942/1 without such a means of access. That is, Barr Property says that refusing the development application on the basis of a lack of access would not “cure” the situation, as the site similarly does not have access to a public road. Further, Barr Property submits that the Court ought to take into account the merit assessment and consent granted by the Council in 2018 which created the site in the current application, and which did not require vehicular access to be constructed or easements to be created.

Access should be provided and the condition is inadequate

71. The fact that the proposed development is only for a paper subdivision, and that it does not seek consent for the use of land or for works, is not a sufficient basis upon which the absence of legal access to the subdivided lots is acceptable.

72. Whilst Lot 2 has frontage to John Renshaw Drive, Lot 1 does not. If the two lots come into separate ownership, which is facilitated by the subdivision, there will be no legal manner of access to Lot 2 without trespassing on other land. As there is no guarantee that the two lots will remain in the one ownership, there is an obligation to have satisfactory arrangements in place for access to each lot (see Cospak International Pty LTd v Mulwaree Shire Council [2002] NSWLEC 200 at [16]-[17]). The manner of legal access to Lot 1 ought to be included in the plan of subdivision so that it forms part of the subdivision, and its absence is unacceptable.

73. The absence of legal access to Lot 1 in the subdivision is unacceptable, firstly, because it is inconsistent with the provisions of the CDCP. Part D.1 of the CDCP requires, at Section 1.3.1(iii), that there be adequate all weather flood-free access to each allotment created by the subdivision, with one of the relevant aims of this control as to “ensure adequate vehicular access from the public road system to each new lot”. Further, Part E.18 requires access to the area to be provided in accordance with the Concept Structure Plan, with the aim to “facilitate safe access for all vehicles to and from the site”. The subdivision of land absent legal access to one of the lots is contrary to these provisions.

74. The absence of legal access to Lot 1 in the subdivision is, secondly, contrary to the public interest. Without legal access, if the lots come under different ownership there will be no ability for there to be maintenance of the land or preparatory work for development. Similarly, an owner of Lot 1 would not have access to their land to meet the bush fire hazard reduction provisions in Div 2 of Pt 4 of the Rural Fires Act. Given these provisions and the requirements associated with maintaining land, legal access that accommodates vehicular access should be available from a public road. Consistent with the decision in Farah, the provision of access cannot be left for consideration at some later time.

75. In addition, the Court cannot rely on the provision of future access to the subdivided lots by the future subdivision of the land, as there is no guarantee that the development of the land will occur in a manner consistent with the CDCP, and so the lots may remain in the form of large ‘superlots’ in perpetuity. That is, there is no guarantee that the two lots, once subdivided, would be developed in accordance with the CDCP. Even if the 40-lot subdivision is approved, there is no obligation for it to be carried out and nor is there a guarantee that it would be carried out. The absence of legal access is not cured by relying on subdivision taking place in the future that meets the vehicular access requirements in the CDCP.

76. The proposed condition of consent for the creation of reciprocal rights of carriageway and easements across the whole of the subdivided lots is an inadequate and inappropriate solution for the provision of legal access, and will not achieve the objectives of the CDCP such that a flexible approach to the above CDCP provisions can be taken pursuant to s 4.15(3A)(b) of the EPA Act. The reciprocal easements proposed do not provide certainty for the location and the extent of the path of travel from a public road to Lot 1. Instead, it gives the land that benefits from each easement the right to use the entire of the burdened lot for the purpose of access, which will stymy development of each burdened lot. If there is no co-operation between landowners of the two lots this will, in turn, sterilise the land for development, contrary to the objectives of the site specific CDCP. I note also that the easements would not necessarily be extinguished by the further subdivision of the lots, but could benefit the subdivided lots (see, for example, Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24 and Butler v Muddle (1995) 6 BPR 13,984).

77. The temporary easement option suggested by Barr Property in its submissions, which reflects option 1 of Mr Barr’s suggested easements to provide legal access, addresses the issues identified in the paragraph above and would be a form of legal access that would ensure that legal access for vehicles would be available to each subdivided lot from a public road. However, there is no evidence in support of this easement which demonstrates that the location of the right of carriageway can actually be physically traversed within Lot 119 and proposed Lot 2, and what the impacts of such a right of carriageway would be. The evidence of Mr Rogers, which is relied upon by Barr Property, only goes so far as the path of travel from Black Hill Road to the site, and not beyond. Similarly, the evidence of Mr Barr does not set out the impacts that such a right of carriageway might have within Lot 119 and proposed Lot 2, such as whether there is an existing driveway within proposed Lot 2 where the right of carriageway is proposed, or whether trees will need to be removed or the topography of the land altered to make it traversable by vehicle.

78. Section 4.15(1)(b) of the EPA Act requires the consideration of “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”. In Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [34], Preston CJ considered that “the likely impacts of a proposed development, the subject of a development application, can include likely impacts of activities other than the proposed development”. As such, the mere facts that works to construct a driveway or access path within the right of carriageway are not proposed in the development application does not allow me to avoid an assessment of the impacts of the right of carriageway in the location proposed. Although the right of carriageway and easement are proposed by way of condition of consent (rather than in the plan of subdivision), it has a “real and sufficient link” to the proposed development and its impacts are therefore required to be considered in considering the impacts of the proposed development. Without evidence in support of this easement which demonstrates that the location of the right of carriageway can actually be traversed within proposed Lot 2, and what the impacts of such a right of carriageway would be, a temporary easement in the form outlined in Barr Property’s submissions cannot be properly assessed and is therefore not supportable.

79. Finally, to the extent that Barr Property relies upon the earlier development consent for the subdivision of the land that created the site (DA 8/2018/942/1), that subdivision can be readily distinguished. The two-lot subdivision in that development consent resulted in two lots that each had road frontage and the site retained frontage to John Renshaw Drive. In the present development application, Lot 1 has no such road frontage.

80. For the above reasons, it is not acceptable to subdivide land without the provision of a legal form of access to each of the subdivided lots from a public road. As set out above, that legal form access is not sufficiently provided by the provision of reciprocal easements over the whole of the subdivided lots, as proposed in the conditions of consent. Nor is there is sufficient evidence for the assessment of the impacts of the temporary easement suggested by Barr Property in its submissions. Therefore, the development application must be refused on the basis that it does not provide a legal form of access to each of the subdivided lots.

Traffic assessment

81. The respondents each contend that the development application does not adequately demonstrate that the safety, efficiency and ongoing operation of the road network will not be adversely affected by the proposed development.

82. TNSW submits that, in circumstances where the road network is of State, Regional and National Significance, and where the future use of the site is projected to generate significant additional vehicle trips, whether the proposed subdivision will result in unacceptable impacts on the road network, needs to be assessed as part of this development application. Similarly, BHI submits that the proposed development gives rise to a ‘traffic generation conflict’ with the BHI concept plan approval, which is unresolved by the absence of a proper traffic assessment of the proposed development.

83. BHI submits that the CDCP does not envisage that the development of the site will rely on the provision of access from the BHI land, and that if the proposed development relies on access through the BHI land it will jeopardise the capacity for BHI to carry out development in accordance with the BHI concept plan approval. Instead, the likelihood is that with the relocation of the BHI intersection further to the east than what was in the concept plan, there will be additional intersections required to access the site from John Renshaw Drive than what is anticipated in the CDCP Structure Plan. BHI submits that any assessment of that should form part of the current proposed development.

The applicant’s position that no assessment is required

84. Barr Property submits that, as the proposed development does not seek use of the subdivided lots and does not seek the carrying out of any works, the two-lot subdivision will not generate any traffic that requires assessment. Consistent with its position, Barr Property relies upon the Traffic Impact Assessment prepared by GTA Consultants dated 24 August 2021, which states that the proposed development will not generate any traffic or any parking demand.

85. Barr Property submits that any subsequent development of those lots that would generate traffic would be subject to a detailed assessment, but that any traffic impact from future development is outside the scope of the likely impacts of the present development application, and does not have a real and sufficient link to the same. As such, consistent with the reasoning of Baston JA in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349, Barr Property submits that the impact of traffic generated from future industrial development of the site would be so remote such that it would “disqualify it from the scope of the consideration”.

86. Barr Property says that if it is wrong on that point, the Court can rely on the Traffic and Transport Port for the Black Hill Planning Proposal, prepared by Hyder Consulting Pty Ltd and dated October 2013 (Hyder report) and the Traffic Analysis Report for the Black Hill Traffic Modelling prepared for TNSW by SMEC Australia Pty Ltd dated 9 October 2020 (SMEC report). These reports assess the cumulative impact of development of both the site and the BHI site on the surrounding road network. Mr Rogers agrees that there has been no material change to the road network or developable area since the SMEC report, and that the creation of Lot 1 as part of the proposed development does not change the overall traffic generation of the subject site.

87. Further, Barr Property submits that the delivery of the structure plan in the CDCP is not compromised by the two-lot subdivision. It relies on the evidence of Mr Rogers, given in cross-examination, that the proposed development does not change the developable area across the site and will not compromise the delivery of the planning outcomes from the site as set out in the CDCP.

There is insufficient information to consider the traffic impact of the development

88. As outlined above, the proposed subdivision of land is not acceptable without a legal form of access to each of the subdivided lots from a public road. Further, its impact on John Renshaw Drive cannot be adequately assessed without defining such legal access and undertaking an assessment of the traffic impacts of the defined legal access based on anticipated traffic required for maintenance and other associated vehicles.

89. I accept the evidence of Mr Krljic that assessment of the broader road network impacts is not necessarily required for the 2-lot subdivision and that the traffic analysis to support the proposed development could be limited to identifying a feasible form of site access which will not adversely impact traffic safety and the efficiency of John Renshaw Drive.

90. I do not accept the position advanced by TNSW that a full assessment of three intersections is required in this development application, or that a full assessment is required to be carried out based on the entire site area being developed for industrial uses. As submitted by Barr Property, there is no use proposed in the development application and any proposed use of the land will be required to have a separate development application, and the traffic assessment of the full industrial development of the site can be considered at that time.

91. However, on the present development application, there is no traffic assessment that has been provided for a defined means of legal access by vehicles to the subdivided lots. The Traffic Impact Assessment prepared by GTA Consultants dated 24 August 2021 is inadequate, as it simply states that there will be no traffic generated by the proposed development.

92. The absence of a traffic assessment for a defined means of legal access is contrary to both the provisions of the CDCP and the SEPP Infrastructure. Control (c) of Part E.18 Section 18.1.7 requires the provision of a traffic impact assessment. Without it, I cannot be satisfied that there is no unacceptable impact on the traffic network. More particularly, I cannot be satisfied that, as required by cl 101 of the SEPP Infrastructure, “the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development”, as there is no certainty as to what impact the subdivision will have given the absence of a defined means of legal access and an assessment of the impact of such access.

93. Contrary to the submission of Barr Property, this deficiency is not addressed by the Hyder report or the SMEC report, as they relate to the full development of the Black Hill Employment Area based on several assumptions, and do not relate to the proposed development.

94. For these reasons also, the development application should be refused.

Outcome of the appeal

95. For the reasons set out above, I have determined that development consent should not be granted in circumstances where the proposed subdivision of land does not include a means of legal access by a vehicle to each of the subdivided lots, and does not provide information on the traffic impact arising from the subdivision.

96. The Court orders that:

1. The appeal is dismissed.

2. The development application number 8/2020/123/1 for a two lot subdivision of the land at 1134 John Renshaw Drive, Black Hill (Lot 1 in DP 1260203) is refused.

3. The exhibits are returned, except for Exhibit A.

…………………………….

J Gray

Commissioner of the Court

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Decision last updated: 11 March 2022