Bruce Kerr Pty Ltd v Gosford CC

[2006] NSWLEC 32

Land and Environment Court

of New South Wales

CITATION:

Bruce Kerr Pty Ltd v Gosford CC [2006] NSWLEC 32

PARTIES:

APPLICANT
Bruce Kerr Pty Limited

RESPONDENT
Gosford City Council

FILE NUMBER(S):

11570 of 2004 and 10109 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- Changes to a development/subdivision which was approved in 1984 - construction or payment for a pedestrian and cyclist bridge.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

19/09/2005, 07/10/2005 and 24/01/2006

EX TEMPORE JUDGMENT DATE:

01/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Rigg, solicitor
of Deacons

RESPONDENT
Mr M. Fraser, barrister
Instructed by: Mr R. Byrd, solicitor
of P J Donnellan & Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 January 2006

11570 of 2004 and Bruce Kerr Pty Limited v
10909 of 2005 Gosford City Council

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 In this matter two appeals were lodged in connection with a large, 7 stage 255 lot subdivision that was originally approved in 1984 of a property at Cowper and Neera Roads, Umina Beach. The full details of the property, the proposal and the planning framework are contained in the statement of basic facts on which I rely.

2 The appeal 11570 of 2004 relates to stage 7 of the development and arises out of council’s refusal to issue a Construction Certificate because of unresolved issues concerning the standard of access to some of the lots and arrangements for a bridging facility over the watercourse. The associated appeal that followed was appeal 10905 of 2005 which relates to the same development, and that was lodged in connection with the refusal of a s 96 modification application to the original subdivision consent.

3 The conditions in dispute related to the original requirement for the vehicular bridge over the watercourse. However, during the lengthy development process for this subdivision, the parties agree that the vehicular bridge is no longer required and there are strong environmental grounds to accept this conclusion. However, the council still required access across the watercourse for pedestrians and cyclists, and there was a difference in opinion as to what standard that pedestrian cycle bridge (access way) should be.

4 During the adjournment of the proceedings it is apparent that there has been conferencing between the parties so that today Mr Cragg, council’s development engineer, in Exhibit 11 has provided a number of options to achieve this access way.

5 Two principal options were discussed and with the applicant’s preferred option, to provide a 2 m wide elevated bridge that has reinforced foundations but with a timber deck. The estimated cost of that work is in the order of $68,000. Against this Mr Cragg prefers a more durable structure, which is a similar specification with the exception that it has concrete planking, which is preferred because of reduced long term maintenance costs. However, the Court has been told that, after clarification of the timber specification, then the applicant’s option has a design life of 50 years, which is similar to the concrete bridge.

6 It seems to me that the objective is to provide reasonable pedestrian and cycle access over this waterway, and the applicant’s proposal with the timber component does that. With a 50 year life cycle it seems to be a completely reasonable period to me, and I am not aware of any cases or any line of authority that I should apply which would impose a further burden on a reasonable basis for the developer to cover the future long term maintenance of the bridge. But the applicant has responded to that concern by offering further a cost component or a resource component to cover the maintenance of this bridge for 5 years.

7 In considering the different positions, I am satisfied that the offer by the applicant to alter the conditions by making a contribution of $75,000, which covers the cost of the timber deck bridge, plus a 5 year period of maintenance is reasonable in the circumstances. However, if council wants to upgrade the standard of that bridge because of wider community benefits, I think that option is available on the basis that the community which benefits from this higher standard can have the opportunity of contributing the incremental additional cost. I consider that is a fair and reasonable outcome in the circumstances of this case.

8 The conditions that have been put forward cover this situation. There is a qualification in those conditions that the council has an obligation to construct this bridge within a three year period. If that is not done then arrangements have to be made for the refund of the contribution. Again I think that is a reasonable. There should be a clear understanding of the background and nexus requiring the access way bridge and specification considering the length of time the development has been in progress. Therefore considering the design specification of this bridge, it would seem that the period to have it constructed and completed is quite generous and achievable within the three years.

9 For these reasons then the Court orders are for appeal 10909 of 2005 are:

1. That the appeal be upheld.
2. That pursuant to section 96 of the Act, that conditions of DA 4676/1984 consent be modified as follows.
Condition 2(j) to read, “2(j), that Myola Road and drainage works be carried out in generally in accordance with four sheets dated August 2005 as amended 11 October 2005 by Bissett and Wright Pty Limited for lot 237 of DP 1003540 Myola Road, Umina Beach.”
Condition 2(k) to read, “2(k), that the applicant make a contribution of $75,000 to Gosford City Council prior to the release of a subdivision certificate under section 109J of the Act in respect of lot 237 DP 1003540 Myola Road for construction of a cycleway/pedestrian bridge across and above the waters of Ettalong Creek and that such contribution be refunded to the applicant in the event that the bridge at Lace Avenue is not constructed to completion within three years of the payment being made.”
3. The exhibits may be returned except Exhibits 6, 11, 14, A, J, L, N and Q.

10 The Court notes the parties agreement to no order as to costs.

11 The orders for appeal 11570 of 2004 are:

1. The appeal be upheld.
2. That Gosford City Council issue a construction certificate in respect of the subdivision works directed in four sheets of drawings dated August 2005 as amended 11 October 2005, Bissett and Wright Pty Limited, for lot 237 DP 1003540 Myola Road, Umina Beach, subject to compliance with the conditions in Annexure ‘A’.
3. The exhibits may be returned except Exhibits 1 and A.
___________________
R Hussey
Commissioner of the Court
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