Eastbrook Estate Pty Ltd v Muswellbrook Council - [2008] NSWLEC 1118

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Eastbrook Estate Pty Ltd v Muswellbrook Council [2008] NSWLEC 1118
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Eastbrook Estate Pty Ltd
RESPONDENT
Muswellbrook Council

FILE NUMBER(S): 11032 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Consent :- cycleway construction, engineering works in land that may be dedicated to Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Mussellbrook Local Environmental Plan 1985

DATES OF HEARING: 31/01/2008 and 05/03/08

DATE OF JUDGMENT:
18 March 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr Newport, barrister
instructed by Mr G. Long
of Law & Planning, Lawyers
RESPONDENT
Mr McKelvey, solicitor
of Sparke Helmore, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

18 March 2008

11032 of 2007 Eastbrook Estate Pty Ltd v Muswellbrook Council
JUDGMENT

1 Commissioner: This is an appeal against the deemed refusal of a s96 application to further modify development consent DA 263/2004 as amended by council on 10 December 2007.

2 The consent relates to stages 7 to 31 of a large residential subdivision of 1048 lots called the Eastbrook Links Estate off the New England Highway, at Bimbadeen Avenue, East Muswellbrook. The site titles are Lot 20 DP24649 and Lot 609 DP1089308 being No.8911 New England Highway.

3 This appeal was dealt concurrently with Appeal No.11174 of 2007, regarding the refusal by council to issue a Subdivision Certificate for Stage 10 of the development.

4 The parties agreed to deal with the disputes via a s 34 conference, and this was held on-site on 31 January 2008, and at 225 Macquarie St, Sydney on 5 March 2008. On the last day, the parties asked the Commissioner to determine the appeals under s 34(3)(b)(ii) of the Land and Environment Court Act 1979.

5 The parties had agreed on modifications to conditions 5, 13, 13A, 13B(a) and (b), and advised those conditions could be determined separately to remaining disputes over conditions 15, 44, 44A, 44B, 44C and 44D. The parties agreed a preliminary decision on the aforementioned conditions in Appeal 11032 would enable the Subdivision Certificate on Stage 10 to issue. I gave part-judgment on Appeal 11032 on that basis, and determined Appeal 11174. I reserved decision on the last mentioned conditions pending this judgment.

6 Condition 15 had no agreement and relates to a cycleway/pedestrian path along the New England Highway to link the proposal with existing paths leading to the Muswellbrook town centre.

7 Conditions 44, 44A, 44B, 44C and 44D were subject to the parties agreeing on wording for design, construction, landscaping and maintenance of works in natural watercourses on site that may eventually be dedicated to council. Agreed wording has been received.

8 Attending the conference for the respondent were: Mr McKelvey, solicitor; Ms N Simmons, solicitor; Mr Jeuken, assist. Director env. services; Mr Pope, Director community infrastructure; Ms S Spicer, Section Leader Environmental and Natural Resources; Ms W Adam, consultant traffic engineer.

9 Attending for the applicant were: Mr G Newport, barrister; Mr G Long, solicitor; Mr M Goodwin, civil engineer; Mr R Nettle, traffic engineer; Mr A Attard, director of applicant and Mr P Grech, town planner.

10 The only issue remaining is condition 15 as amended by Council on 10 December 2007. It reads:

A combined foot/cycle path shall be provided at no cost to Council along the New England Highway from Bimbadeen Drive intersection on the southern side of the highway, and from this intersection west to connect with existing foot/cycle path network at the Rutherford Rd intersection with the highway, prior to the release of the linen plan for Stage 11 (or any later stage) of the subdivision. Council agrees to contribute reasonable costs associated with infrastructure changes to the driveway access to the council administration building in accordance with previous resolutions and written agreements provided on behalf of Council.

11 The applicant wishes to delete the last paragraph entirely for reasons mentioned below. The cycleway has been built to the western boundary of Stages 1-7 and ends just inside adjoining land belonging to the Council administration building.

12 The applicant wants to change the first paragraph so that it only has to build the cycleway along its own eastern highway frontage of Stages 13 –31, and not that of an intervening property that has a consent for development already with a condition to build that section of cycleway. This will change the first paragraph to read in part ”……….along the new England Highway from the eastern boundary of Lot 23 DP24649 on the southern side of the highway to the proposed eastern intersection with the New England Highway, prior”. There words replace the words from “along” in the second line to the word “prior” in the same paragraph.

13 The council’s case is:

The applicant in its Statement of Environmental Effects wrote in several locations that a cycleway/pedestrian pathway would be included to connect to the urban cycleway system that takes people to the town centre.

The applicant has taken advantage of its consent and now seeks to escape the burden.

The applicant has submitted engineers design drawings for the cycleway to Rutherford Rd and the council had taken that in good faith as the applicant proceeding to implementation.

The earlier consents may have not been as specific as the current conditions requiring the cycleway to be built to Rutherford Rd, where the existing town cycleway ends. But that is due to the council only recently becoming aware that the applicant does not intend to build the cycleway to Rutherford Rd.

The council s94 contributions plan does include for roads, paths and cycleways in the Roadways contribution. But that is for the identified route of the cycleway network that shows it on the north side of the New England Highway opposite the site. This development needs a link on the south side of the highway.

The s 94 plan has heavily discounted rates of contribution determined by the council to encourage new development. As a result there is only $49 out of the Roads & Drainage contribution of $780.84 per lot that could be allocated to the cycleway. That will not pay for the council to construct it; the estimated cost from the boundary of the subject property to Rutherford Rd is $400,000.

The council has resolved to give a contribution of $80,000 for cycleway and related drainage works needed at the council chambers entry driveway off the highway.

The works will require the approval of the Roads & Traffic authority, being along the edge of the highway.

It is reasonable for the council to expect the applicant to build it as part of the overall development, and not the council. The subdivision of over 1000 residential lots will have a future population that requires a cycleway link.

The council agrees to staging of the cycleway to co-ordinate with progressive development of the subdivision. Council has already allowed deferment of cycleway construction beyond the subject site from stages 7 to 10. But from now on the need for the cycleway will grow. Already residents of the early stages of subdivision are seen walking/riding along the edge of the highway. Greater safety is a priority.

14 The applicant’s case is:

The Statement of Environmental Effects is a generic document that looks at the overall planning of Muswellbrook, notes the council plan for an urban cycleway system and makes suitable provision for the development to provide its on-site component.
Eastbrook Estate has its own council adopted development control plan (DCP No.4), and it shows the cycleway as built running through the estate to its existing point of termination. The DCP asks for a 1.8m wide cycleway, the section along the highway frontage is 2.5m wide but the path in the estate is 1.8m wide as the DCP asks.
The cycleway from the existing termination to Ruthford Rd is off-site and could not have been part of the application or the consent because the applicant is not the owner of the route.
The council planner has agreed with the applicant’s planner that the s94 plan does provide for contributions from developments for cycleways external to their sites to be collected by the council. The applicant has always assumed it has already contributed and will continue to contribute for the external component as new stages of the subdivision are released after contributions are paid.
The fact that council may have discounted the s 94 contribution rate to encourage development does not justify requiring the applicant to pay for the full cost of 2 km of cycleway that will benefit many other developments and their residents, than the proposal.
The submission that only $49 out of $780.84 per lot for Roads & Drainage s94 contribution could be allocated for the cycleway cannot be a justification. Where is the rest of the $780.84 per lot to be spent? It is only a matter of council allocating the priority to the cycleway for construction.
If the planned urban cycleway system shows the cycleway on the north side of the highway, then it is already there. The highway has a signposted cycleway carriageway on the north side now.
The council official website shows the Capital Expenditure for 2004 – 2007. Under cl 3.5.3 Bicycle Facilities – Muswellbrook, it says: “Council is currently preparing plans for the construction of pathways in South Muswellbrook to be funded from Developer Contributions from Council’s subdivisions….Particular projects include cycleway linkage from Eastbrook Links Estate to Rutherford Rd. Funding Source: development contributions from Eastbrook Links Estate. Cost: $120,000.”
The submission from the council that the actual cost is now estimated at $400,000 instead of $120,000 reveals the construction difficulties the applicant identified when, in good faith, it paid for an engineers design of the cycleway to Rutherford Rd. There are many engineering difficulties to be overcome that only the responsible authority can negotiate, design, approve and construct. The design the applicant gave council has had NO response to date, so the applicant does not know if it is to be approved.
The council has placed conditions on at least two other developers to construct parts of the same cycleway link to Rutherford Rd. That is “double-dipping” by the council. Obviously each development should build any component of the cycleway along its own frontage or within its development.
But the connection of these components together as a district network, and their extension to Rutherford Rd should come out of the s 94 contributions paid for that purpose. Or, the connection costs must be Council’s contribution to the cycleway network from general revenue on behalf of the existing residents who will use the cycleway, and for whom no s94 contribution can be collected.
The council capital works program also shows the council has $168,000 in grants to construct cycleways and that adds to the s94 contributions collected.
If the applicant agrees to construct any part of the off-site cycleway it should be treated as works in lieu of s94 contributions and the costs deducted from future s94 contributions.

Conclusions

15 The council consent for Stage 1 of Eastbrook made no mention of the cycleway.

16 The council consent for Stage 2 of Eastbrook, condition 10 required a shared foot/cycleway 2.5m wide along only the highway frontage of the development west of Bimbadeen Dr.

17 The council consent for Stage 3 of Eastbrook, condition 10 required:

“a cycleway network fronting the New England Highway from Rutherford Rd into the staged subdivision in accordance with the provisions of DCP-No.4 Eastern Land Bank and Council’s Strategic Plan for Cycleway’s in South Muswellbrook. Provision for on road cyclists is to be made through the Bimbadeen Dr intersection”.

18 The council consent for Stages 4,5 and 6 of Eastbrook, condition 10 said the same as for Stage 3.

19 The council also observed that Condition 1 of the first four consents said :

must be carried out in accordance with the development Application and accompanying plans, drawings and other documents as amended by conditions of this consent.

20 In the respondent’s opinion this included the Statement of Environmental Effects that included masterplans and landscape plans showing the cycleway and captions and text indicating it was to be built to connect into the town cycleway network. The latter could not be achieved without building it to Rutherford Rd.

21 The council submitted that the applicant has had ample notice by conditions of at least two previous consents that the cycleway has to be built to Rutherford Rd, and yet it has only appealed it now. Effectively the applicant has taken the benefit of those consents and now wishes to be relieved of the burden.

22 The applicant notes that the council has released Subdivision Linen Plans on all previous stages and that means ALL conditions have been complied with to council’s satisfaction. If the council had intended the cycleway be built to Rutherford Rd, instead of the applicant building its on-site component and contributing to the network connection, why were the linen plans released?

23 The latter fact is a cogent reason to support the applicant’s case. There may have been some confusion created by both parties in the past about what components of the cycleway are to be built by whom. However the release of the Linen Plan is the definitive statement because implicit in its release is the satisfaction of the council. There is no agreement or undertaking or letter produced to me that at the time of the release of the previous Linen Plans the council and the applicant came to some alternative arrangement about the applicable Condition(s) No.10.

24 The disputed Condition 15 in this appeal was inserted by council of its own volition in granting the s96 application by the applicant in regard to amendment of Conditions Nos. 5, 13, 24 and 39 and deletion of Conditions Nos. 6, 15, 17, 25 and addition of a condition to dedicate land to council.

25 The other conditions are not relevant to the remaining dispute. The Condition 15 in the consent DA263/2004 granted on 13 April 2005 stated:

A combined foot/cycle path 2.5m wide shall be provided along the New England Highway from the Bimbadeen Road intersection on the southern side of the highway and from this intersection to the proposed eastern intersection with the New England Highway.

26 This condition is for the cycleway extension eastwards to the yet-to-be-built Stages 13 to 31. The Council granted the amendments to DA 263/2004 on 30 March 2006 and did not change Condition 15.

27 Even though Condition 1 referred to the Development Application and accompanying plans described as Statement of Environmental Effects, Master landscape plan etc, one would have expected the cycleway link westwards to Rutherford Rd to be included in Condition 15, or another condition in consent DA263/2004 if it was expected to be built by the developer.

28 The applicant puts that the reasons for its request to delete Condition 15 as it then stood is due to the internal cycleway of its own development being quite sufficient, safer and more attractive for future residents of Stages 13 to 31 to come down to the Bimbadeen Drive access to the highway link to the town cycleway network. Also Development Consent for two other properties that are not part of the Eastbrook are already required to construct this extension of the cycleway along the highway east of Bimbadeen Drive (DA 471/2004 and 146/2002).

29 DCP No.4 - Eastern Landbank South Muswellbrook is the applicable control plan for Eastbrook. It only asks for a cycleway FROM the highway through the estate as shown on the applicable map. No mention of it having to go along the highway either west of the site or east of the site. The cycleway is shown as being internal to the estate except where it meets the highway at Bimbadeen Drive.

30 The applicant in the end agreed to build the cycleway westwards along the highway frontage ONLY of Stages 13 to 31 from the yet-to-be-built eastern highway access for those stages.

31 DCP No.7 the s94 contributions plan cl 4.3 shows South Muswellbrook cycleways (Sth Mbk Sch) $168,000 comprising $84,000 in revenue and $84,000 in grants in the years 2000 to 2003 works programmes. The $677 per lot out of the $780.84 per lot for road upgrading in the s94 plan is not broken down into components. I accept Mr Grech’s opinion that the Roadways amount must include everything in the road reservation, including cycleways where applicable.

32 DCP No.8 the general subdivision controls says in cl 1.5 that s 94 contributions may be required urban roads/traffic facility headworks. The parties agreed this includes for cycleways as referred to in cl 3.7. Clause 3.7 says cycleways shall be provided in accordance with Council’s Masterplan for cycleways.

33 The masterplan shows the town cycleway network coming from Rutherford Rd eastwards on the south side of the highway as far as the Wayfarer Motel, and then crossing to the north side of the highway and continuing eastwards past the site. The Wayfarer is adjacent the Rutherford Rd intersection.

34 The north side of the highway past the site is currently signposted as a cycleway. Rutherford Rd leads to the south Muswellbrook shopping centre.

35 The s94 plan does not appear to have been updated except for contribution amounts indexing since 2005, so its figures and allocations date back several years. I cannot escape the official website of the council saying it has $120,000 from revenue collected from the Eastbrook Estate for cycleways.

36 At the end of the conference, the respondent suggested I might make a determination of a “reasonable contribution under s94 for the cycleway link west of Bimbadeen Dr”. The applicant said that since no amount was suggested it had nothing to reply to in that regard.

37 My conclusion can only be based on the factual documents brought forward. The council’s documents show that the applicable DCP No.4 only wants a cycleway internal to the development, coming out at the highway intersection with Bimbadeen. The s94 plan shows that the council can and does collect contributions for the town cycleway network. I accept that the Statement of Environmental Effects (SEE) is a document that puts the proposal in the urban and environmental setting around it, as well as putting forward concepts for development and their impacts and the necessary ameliorations to make any impacts acceptable.

38 I note that in this case compared to the SEE, the actual subdivisional layout and many detailed aspects are different to the actual subdivision plans approved by Council to date. This is not abnormal, developments evolve as they go through the detailed design and then the construction process. And presumably s96 modification applications or fresh development applications, or building certificate applications are approved by the relevant authority to cover the changes before they are built.

39 Amongst these changes, for one reason or another as referred to in the Council officer’s report of 12 November 2007, the condition for the cycleway west of Bimbadeen was not included and the applicant has proceeded on the basis of that consent. If it was an issue between the parties because of previous consents it was not at the time of granting DA263/2004, and should not arise as a result of a s96 amendment application for other matters.

40 There fore the Orders of the Court are:

1. Further to the Orders of the 5 March 2008. The appeal is upheld in regard to Condition 44 to 44D as follows:

44. Stormwater drainage systems and easements shall be provided in accordance with Council’s Engineering Guidelines for Subdivisions and Developments.

44A. Prior to the issue of a subdivision certificate for Stage 11 of the subdivision, the Applicant must submit for Council’s written approval a detailed plan for works along the western natural watercourse which forms part of the stormwater drainage system as well as associated buffer zones and adjacent open space.

Any plan submitted in accordance with condition 44A must be generally consistent with the Master Landscape Plan submitted with the development application.

44B. Prior to the issue of a Subdivision Certificate for Stage 11 of the subdivision, a detailed design for:

(a) all works in, on or near the western natural watercourse; and

must be submitted to Council for written approval.

The following requirements apply to any design submitted in accordance with condition 44B:

(a) The design must be certified by a qualified practising civil engineer as being in accordance with Aus-Spec Design and Construction Specifications, “Australian Rainfall and Runoff”, Institution of Engineers Australia 1998 and CSIRO “Water Sensitive Urban Design – Engineering Procedures: Stormwater” CSIRO, 2005.

(c) Permanent water quality, detention, retention and sediment control devices must be included in the design. An operation and maintenance plan for those devices must accompany the design. These devices should be designed with an average minimum maintenance interval of twelve months, after the subdivision is fully stabilised, and to be of a type and design acceptable to Council’s maintenance requirements. Preference is given to bulk removal devices that can be cleaned using a backhoe or small excavator. Proprietary, and closed chamber systems requiring pump outs and special maintenance equipment shall generally be avoided; unless approved by Council in severely constrained circumstances. Suitable provision must be made for the required service vehicles to access the sites including crossings of footpaths and suitable manoeuvring and material handling areas.

44C. Prior to the issue of a subdivision certificate for Stage 11 of the subdivision, all works in the western natural watercourse and augmentation of the detention basin referred to in condition 44B must be completed to the written satisfaction of Council.

A combined foot/cycle path 2.5m wide shall be provided at no cost to Council along the New England Highway from the eastern boundary of Lot 23 DP 24649 on the southern side of the highway to the proposed eastern intersection with the New England Highway prior to the release of the linen plan for stage 19 (or any later stage) of the subdivision.

___________________

K G Hoffman

Commissioner of the Court

26/03/2008 - Spelling corrections, adding name to paragrpah and No. 1 to order 3. - Paragraph(s) Paragraph 9, 32 and Order 3

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Eastbrook Estate Pty Ltd v Muswellbrook Council [2008] NSWLEC 1118

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CITATION:	Eastbrook Estate Pty Ltd v Muswellbrook Council [2008] NSWLEC 1118 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Eastbrook Estate Pty Ltd RESPONDENT Muswellbrook Council
FILE NUMBER(S):	11032 of 2007
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- cycleway construction, engineering works in land that may be dedicated to Council
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Mussellbrook Local Environmental Plan 1985
DATES OF HEARING:	31/01/2008 and 05/03/08
DATE OF JUDGMENT:	18 March 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr Newport, barrister instructed by Mr G. Long of Law & Planning, Lawyers RESPONDENT Mr McKelvey, solicitor of Sparke Helmore, Lawyers