Davis v Byron Shire Council

[2012] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davis v Byron Shire Council [2012] NSWLEC 1267

Hearing dates:

13 September 2012

Decision date:

21 September 2012

Jurisdiction:

Class 1

Before:

Fakes C

Decision:

1. The appeal is upheld.

2. Modification Application No. 10.2008.159.2 is approved.

3. Development consent No. 10.2008.159.1 for a Rural Subdivision on Lot 2 DP 1074823 and Lot 2 DP 614621 825 and 895 Main Arm Road Main Arm is modified by the deletion of condition 7(e), the deletion of part of condition 60, and the inclusion of new condition 80.

4. Exhibits 1,2 and 7 are retained; all other exhibits are returned.

Catchwords:

MODIFICATION APPLICATION: Consent orders; delete condition requiring re-construction of a causeway on a public road

Legislation Cited:

Environmental Planning & Assessment Act 1979
Byron Local Environmental Plan 1988

Category:

Principal judgment

Parties:

Mike Davis (Applicant)
Byron Shire Council (Respondent)

Representation:

Applicant: Mr M Young (Solicitor)
Respondent: Mr A Seton (Solicitor)
Applicant: McCartney Young Lawyers
Respondent: Marsdens Law Group

File Number(s):

10604 of 2012

Judgment

1. COMMISSIONER: This is an appeal under s97AA of the Environmental Planning & Assessment Act 1979 (the Act).

1. The applicant, Mr Davis, is dissatisfied with Byron Shire Council's refusal of his modification application pursuant to s 96(1A) of the Act for the deletion of condition 7(e) from his development consent No: 10.2008.159.1 (the consent).

1. The council issued the consent on 24 June 2010 for the rural subdivision of Lot 2 in DP 1074823 and Lot 2 DP 614621 into an 8 lot Torrens title subdivision and a 14-lot community title subdivision.

1. Condition 7(e) of the consent required Mr Davis to upgrade the causeway on Main Arm Road over Blindmouth Creek to Austroad standards. The condition states:

7Consent required for works within the Road Reserve

Consent from Council must be obtained for works within the road reserve pursuant to Section 138 of the Roads Act 1993. Three (3) copies of engineering construction plans must accompany the application for consent for works within the road reserve. Such plans are to be in accordance with Council's adopted engineering standards and are to provide the following works:

(e)The upgrade of the causeway on Main Arm Road over Blindmouth Creek to Austroad standards. The upgrade is to include provision for 2 way traffic and increased flood immunity.

Note: Council will accept the works required for the upgrade of the causeway on Main Arm Road over Blindmouth Creek as works in kind and will reduce the contributions (up to the full value of the contributions) by the value of the works undertaken by the owner. The value of the works must be provided by the applicant prior to construction and must be independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors or a person who can demonstrate equivalent qualifications. Acceptance of works in kind is at the sole discretion of the Council. Council may review the valuation of works and may seek the services of an independent person to verify the costs. In these cases, all costs will be at the expense of the applicant.

1. According to the Council's Statement of Facts & Contentions dated 30 July 2012, the condition was imposed to ensure adequate and safe road access.

1. Of some relevance is Condition 60 - Developer Contributions to be paid.

Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan 2005 dated June 2005 and Byron Shire Council Section 94 Contribution Plan 2005 Amendment No.1 dated 20 July 2005 for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic and Urban Improvements, Shire Support Facilities and Administration. The Plan may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby.

The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment.

Payments will only be accepted by cash or bank cheque.

Council will accept the works required for the upgrade of the causeway on Main Arm Road over Blindmouth Creek as works in kind and will reduce the contributions (up to the full value of the contributions) by the value of the works undertaken by the owner. The value of the works must be provided by the applicant prior to construction and must be independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors or a person who can demonstrate equivalent qualifications.

1. The Schedule of Contributions pursuant to s 94 of the Act shows the itemised contributions for each of the proposed five stages of the development. The total amount is $282,589.19 with the contributions for 'Roads' comprising a total of $139,425.01.

1. A report on behalf of council's Executive Manager of Environment and Planning regarding the modification application was made to the council's ordinary meeting on 7 June 2012. The report includes the following discussion in relation to cl 24(3)(b):

In this regard, future residents of the village lots will have access to the Main Arm Shop in the same manner as other residents of the village during a flood event, however access into Mullumbimby though will be disrupted not just by the crossing at Blindmouth Creek but in a number of other low lying areas on main Arm Road. It is predicted that during large flood events access into Main Arm can be flooded for a period of up to three days. No specific provisions are contained within Council's development control plans to guide what are satisfactory arrangements for access during a flood....

1. However, in conclusion to the section of the report on flooding, the report states:

Not withstanding the above the general level of service provided by the existing crossing is insufficient for existing residents and to place further traffic which would be reliant upon this crossing cannot be supported. In order to meet the provision of Clause 24(3)(b) arrangements need to be made for the construction of the bridge.

1. The report later states in the conclusion that:

The applicant raises relevant points that it is unreasonable for them to have to fund and construct the new crossing and that s 94 is the appropriate mechanism for the levying of funds to go to the co-ordination of the building of public infrastructure. As discussed the crossing is in need of replacement and satisfactory arrangements need to be in place to enable this development to proceed. Significantly though, the works will still need to be carried out regardless of this development application to service the residents in main Arm and Upper main Arm and for those who use this road to travel to Mt Jerusalem National Park or across to Uki in Tweed Shire.

If the Developer (or other developers in the Main Arm Area) is not able to proceed to build the bridge then ultimately the alternate is for Council to construct the bridge using Section 94 funds. The adoption of the draft section 94 plan will enable the bridge to be funded and constructed in a timely manner.

1. The report recommended:

That determination of this application be deferred pending adoption of the draft section 94 plan.

1. Despite the recommendation, council refused the s 96(1A) application on 7 June 2012 on the grounds that:

1.Pursuant to Section 79C(1)(a)(i) the proposed amendment is inconsistent with Clause 24(3)(b) of the Byron LEP 1988 and does not provide safe access to the site in the event of a flood.

2.Pursuant to Section 79C(1)(c) the site is not considered suitable if the crossing is not upgraded to provide an increased level of safety for residents and other travellers using Main Arm Road.

3.Pursuant to Section 79C(1)(e) the proposed development is not in the public interest if the crossing is not upgraded.

1. Amongst other things, the applicant contends that the imposition of condition 7(e) cannot be lawfully required under s 94 of the Act. In summary, it submits that the condition is unreasonable because:

• The construction of the causeway does not reasonably relate to the development. The causeway is already acknowledged to be inadequate and the applicant's development is not so extensive that it requires the applicant to bear the full cost of upgrading it in lieu of all s 94 contributions.
• The imposition of the condition does not recognise the extensive, and indeed prohibitive, cost of the upgrade as opposed to the s 94 contributions imposed on the consent.
• The relevant Development Control Plan and s 94 Contribution Plan was prepared on the basis that the causeway would be upgraded with s 94 contributions. Therefore to impose the condition as a 'general' condition of consent to construct the causeway and to contribute to the local road network (through s 94 contributions) amounts to 'double dipping'.
• The same condition of consent has been imposed on development consents for two other nearby developments. In the applicant's view, this is 'unreasonable and irrational'.

1. On 22 June 2012, the applicant appealed to the Court against council's refusal of the modification application.

1. On 9 August 2012, the council resolved not to defend the appeal and offer up consent conditions to the applicant and to the Court. The council considers it is no longer necessary to retain condition 7(e). The parties seek consent orders from the Court (in summary) to:

• Uphold the appeal;
• Approve Modification Application No. 10.2008.159.2;
• Delete Condition 7(e) from Development Consent No. 10.2008.159.1;
• Delete the last paragraph of Condition 60 from Development Consent No. 10.2008.159.1; and
• Insert a new Condition 80 requiring a s 88E Instrument and Management Statement requiring, in part, the owner of each allotment to have in their home a copy of the latest version of the document "Home Floodsafe Toolkit" prepared by the NSW State Emergency Service.

1. In accordance with the Court's Practice Direction, objectors were notified and several members of the local community gave evidence on site.

1. By way of background, the causeway in question (the causeway) is a single lane culvert over Blindmouth Creek. It is located on Main Arm Road, south of the intersection of Main Arm Road with The Pocket Road and is one of many causeways in the locality. The village of Main Arm is approximately 200m to the west of the causeway. The entrance to the proposed 14 -lot community title subdivision is approximately 50m to the south of the causeway. The entrance to the proposed 8-lot Torrens title subdivision is within the village of Main Arm. Main Arm Road provides access from Main Arm to Mullumbimby.

1. There is no dispute between the parties that the causeway is inadequate in its current state. The causeway is subject to flooding during a 1 in 3 month storm or flood event. Residents who gave oral evidence stated that the causeway can remain flooded for several days at a time.

1. In essence, the residents are concerned about the unsafe nature of the causeway and the risk of future accidents as a consequence of increased traffic generated by the proposed development. The issues raised by them include:

• Frustration over what they submit were council promises, going back many years, to upgrade the causeway through impositions on developers.
• The alignment, location and dimensions of the causeway - being single lane with no guard rails, near an intersection, approached around bends in two directions, near a school bus stop - make it unsafe with or without a flood. Many vehicles have gone off the edge of the causeway and one person has died.
• Increasingly, the road is used by tourists and others who are unfamiliar with the local roads and the causeway; new residents will be similarly unfamiliar.
• The development should not proceed until the causeway is upgraded.
• The proposed s 88E condition does not address the community's concerns over the generally unsafe condition of the causeway.

Findings

1. For applications made under s 96(1A), the consent authority, in this case the Court, may modify a development consent if it is satisfied that:

• the proposed modification is of minimal environmental impact (s 96(1A)(a)),
• the development to which the modification relates is substantially the same for which the consent was originally granted (s 96(1A)(b)),
• the application has been appropriately notified (s 96(1A)(c)),
• it has considered any submissions concerning the modification (s 96(1A)(d)), and
• it has taken into account the relevant matters referred to in s 79C(1) of the Act (s 96(3)).

1. The report to council of 7 June 2012 at cl 2.4 - The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality: states:

The removal of the requirement for the applicant to construct the new creek crossing on Main Arm Road will not have a detrimental impact upon the built or natural environment or generate any deleterious social or economic impacts on the locality.

1. The parties agree that the development to which the modification relates is substantially the same for which the consent was granted, and I concur. In regards to the notification process, exhibit 5 being letters from the respondent's solicitors, identifies that this was appropriately conducted. Therefore, in this matter, I consider s 96(1A) clauses (a), (b) and (c) to be satisfied. I have also taken into account the objectors' submissions.

1. In regards to s 79C(1), the following matters are relevant.

1. The applicable environmental planning instrument is the Byron Local Environmental Plan 1988 (BLEP). Clause 2A(2)(d) requires consideration of the Byron Rural Settlement Strategy. Main Arm is identified in the Byron Rural Settlement Strategy 1998 as an opportunity for rural settlement including, amongst other forms of housing, a proposed Community Title Settlement of up to 135 dwellings. The council has approved a number of developments in accordance with this policy. The proposed development is permissible with consent.

1. Clause 24(3)(b) BLEP requires that "satisfactory arrangements are made for access to the building or work during a flood". I note that this clause does not use the words 'provide safe access to,' as used in council's reasons for refusal, but rather requires that 'satisfactory arrangements' be made. I note the comments made in the report to council on 7 June that there are no specific provisions in the BDCP that describe what those satisfactory arrangements should be. While satisfactory arrangements must be safe, the clause is general in nature. The proposed s 88E instrument is one means of alerting prospective owners to the risks associated with living in a flood prone area.

1. Clause 29(1)(a) refers to a subdivision listed in Schedule 8 of BLEP. Items 53 and 54 of that Schedule include the Lots the subject of the consent. The Schedule identifies specific considerations for each item. The council submits that the BLEP makes no requirement for off-site works to be carried out in order.

1. Chapter 8: Village of Main Arm in Byron Shire Development Control Plan 2010 (BDCP) applies. Section 2 lists the public services and facilities to which development contributions or dedication of land will be directed. These are: Public open space, Creek paddock, Arboretum, Western Ridge, Open space network, Roads and drainage (cl 2.8). Clause 2.8(a) specifically refers to the causeway on Main Arm Road to the east of the village. The works are to include 'construction of a bridge to raise the road to an appropriate level, in the same location as the existing causeway'.

1. Clause 2.8 in BDCP has since been superseded by the requirements of section 94 and 94B of the Act.

1. Section 94(1) of the Act considers that if a consent authority is satisfied that the development will or is likely to require the provision of, or increase in demand for, public amenities and public services within the area, the consent authority may impose a condition requiring the dedication of land or the payment of a monetary contribution, or both. Section 94(2) states that a condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution be made. Section 94B(1) requires the contribution imposed to be determined in accordance with, a contributions plan.

1. The Section 94 Development Contributions Plan 2005 - incorporating Amendment No 1 identifies the site as being in the 'Rural North' catchment. This plan specifies the contribution per unit of development for each category of public facility. This is the basis of the calculations for the contributions shown in [7] of this judgment. In this way, council has applied the plan to determine the 'reasonable' contribution the applicant is to make towards public amenities generally, and roads specifically. Although no detailed costing of the upgrade was provided to the Court, the internal reports to council included in the evidence suggest a figure substantially greater than the calculated s 94 contributions.

1. While Table 4.16 Rural Road Upgrading Program in the plan lists 'New works' to include 'Upper Main Arm/ Main Arm' - Main Arm Road with the totality of the cost to be collected from s 94 contributions, it is reasonable to assume this is from a pool of contributions and not a single developer such as the applicant. The causeway is not specifically identified in this table.

1. I note that the report to council dated 7 June 2012 states that the s 94 Rural North Catchment account for Rural Roads has insufficient funds for the upgrade of the causeway and that the current plan does not allow for pooling of funds. A new draft s 94 contributions plan is currently on exhibition. If adopted, this plan would allow for pooling of funds and access to other accounts that could be allocated to replacing the crossing. However, the report also states that the crossing is currently listed as No. 8 on Council's Causeway Replacement Hierarchy on the Community Infrastructure Works Plan.

1. In regards to the submissions and the public interest, while I understand the community's frustration and concerns regarding the on-going poor state of the causeway, and that the upgrade has been flagged by the council since at least 1988, I agree with the parties that the appropriate mechanism for the upgrading of the causeway is through s 94 contributions and it is not appropriate to impose the burden of the full cost of the upgrade of the causeway onto the applicant as imposed by condition 7(e).

1. Therefore, on the basis of the foregoing, I accept that the consent orders sought by the parties may be granted.

Orders

1. By consent the Court orders that:

(1)   The appeal is upheld.

(2) The application pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 (Modification Application No. 10.2008.159.2) is approved.

(3) Development Consent No. 10.2008.159.1 granted by the Respondent on 24 June 2010 for a Rural Subdivision comprising an 8 lot Torrens title subdivision and a 14 lot community title subdivision incorporating a neighbourhood allotment on the land known as Lot 2 DP 1074823 and Lot 2 DP 614621 825 Main Arm Road and 895 Main Arm Road, Main Arm is modified pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 as follows:

(a)   Delete the following words from condition 7:

"(e) The upgrade of the causeway on Main Arm Road over Blindmouth Creek to Austroad standards. The upgrade is to include provision for 2 way traffic and increased flood immunity.

Note: Council will accept the works required for the upgrade of the causeway on Main Arm Road over Blindmouth Creek as works in kind and will reduce the contributions (up to the full value of the contributions) by the value of the works undertaken by the owner. The value of the works must be provided by the applicant prior to construction and must be independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors or a person who can demonstrate equivalent qualifications. Acceptance of works in kind is at the sole discretion of the Council. Council may review the valuation of works and may seek the services of an independent person to verify the costs. In these cases, all costs will be at the expense of the applicant."

(b)   Delete the following words from condition 60:

Council will accept the works required for the upgrade of the causeway on Main Arm Road over Blindmouth Creek as works in kind and will reduce the contributions (up to the full value of the contributions) by the value of the works undertaken by the owner. The value of the works must be provided by the applicant prior to construction and must be independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors or a person who can demonstrate equivalent qualifications.

Acceptance of works in kind is at the sole discretion of the Council. Council may review the valuation of works and may seek the services of an independent person to verify the costs. In these cases, all costs will be at the expense of the applicant."

(c)   Insert the following words after condition 79:

"The following conditions must be complied with prior to the issue of a Subdivision Certificate

80)Section 88E Instrument and Management Statement

Prior to the release of a subdivision certificate for Stage 1: proposed Subdivision of Lot 2 DP 614621, Lot 2 DP 1074823 & Lot 2 DP 1122772 to create 8 village lots and 1 residue lot in a conventional subdivision a section 88E instrument is to be prepared in accordance with the provisions of the Conveyancing Act 1919. The 88E instrument shall require:

a)The owner of each allotment in the subdivision to have in their home a copy of the document "Home Floodsafe Toolkit" or the latest version thereof as prepared by the NSW State Emergency Service and available for download from: the sale of each lot the vendor shall provide with the contract for sale a copy of the document "Home Floodsafe Toolkit" or the latest version thereof as prepared by the NSW State Emergency Service and available for download from: 88E instrument shall be provided to Council for approval prior to release of the subdivision certificate.

Prior to the release of the subdivision certificate for the following stages:

Stage 2: Proposed Subdivision of the residue lot from stage 1 to create 3 rural residential lots (lots R2, R3, & R4), 1 development lot and 1 community lot in a community title subdivision;

Stage 3: Proposed Subdivision of the development lot from Stage 2 to create 4 rural residential lots (lots R1, R5, R6 & R7) and I development lot in a community title subdivision;

Stage 4: Proposed Subdivision of the rural development lot from Stage 3 to create 3 rural residential lots (lots R8, R9 & R10) and 1 development lot in a community title subdivision;

Stage 5: Proposed Subdivision of the development lot from Stage 4 to create 3 rural residential lots (lots R11, R12 & R13) in a community title subdivision.

a management statement prepared in accordance with Community Land Development Act 1989 shall require:

a)The owner of each allotment in the subdivision to have in their home a copy of the document "Home Floodsafe Toolkit" or the latest version thereof as prepared by the NSW State Emergency Service and available for download from: the sale of each lot the vendor shall provide with the contract for sale a copy of the document "Home Floodsafe Toolkit" or the latest version thereof as prepared by the NSW State Emergency Service and available for download from: management statement shall be provided to Council for approval prior to release of the subdivision certificate.

(4)   Exhibits 1, 2 and 7 are retained; all other exhibits are returned.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 24 September 2012