Ferguson v Dungog Shire Council

[2006] NSWLEC 459

Land and Environment Court

of New South Wales

CITATION:

Ferguson v Dungog Shire Council [2006] NSWLEC 459

PARTIES:

APPLICANT
Graeme Ferguson
RESPONDENT
Dungog Shire Council

FILE NUMBER(S):

11283 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Rural subdivision, vehicular access, road and river crossing upgrading

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979; s 79C
Dungog Local Environmental Plan 1990
Dungog Local Environmental Plan 2006
Dungog Shire Rural Strategy 2003
Dungog Shire Wide Development Control Plan 2004
Dungog Rural Roads Policy 2005
Planning for Bushfire Protection Guidelines 2001

DATES OF HEARING:

28/06/2006

 
DATE OF JUDGMENT: 

07/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Williams, solicitor
SOLICITORS
Thompson Norrie

RESPONDENT
Mr A McKelvey, senior associate
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 July 2006

11283 of 2005 Graeme Ferguson v Dungog Shire Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No. 234/2004, which is for the subdivision of Lot 1 DP 1006931 and Lot 1 DP 178749 being land known as 52 Gabulah Road, Gresford, into four lots having areas of 60, 87, 60 and 60 ha. The rural site is located about 4.5 km west of the village of Gresford and is accessed via the Gabulah Road Bridge, a table stayed suspension bridge with limited capacity or an existing riverbed crossing. Gabulah Road is a gravel formed public road. A short part of this road is maintained by the council and is otherwise maintained by landowners.

Statutory provisions

2 The site is zoned 1(a) Rural under Dungog Local Environmental Plan 2006 ("LEP 2006"). Being an established holding the proposal complies with the 60 ha site area development standard in cl 24 and is permissible with development consent. Clause 9 provides that consent may be granted only if the proposed development is consistent with a number of matters including: the objectives of the zone; performance and development standards; and the Dungog Shire Rural Strategy ("the rural strategy").

3 Because the subject development application was lodged with council prior to the gazettal of LEP 2006 the transitional provisions of cl 36 are applicable to the effect that this local environmental plan is to be treated as a draft for the purposes of s 79C of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). Hence, Dungog Local Environmental Plan 1990 ("LEP 1990") is the applicable planning instrument.

4 Under LEP 1990 the site is zoned 1(b) General Rural and under cl 20 a 60 ha minimum lot size is applicable. The proposal complies with this development standard and is permissible with development consent.

5 Relevant to the principal issue in case the objective in cl 9 of LEP 1990 requires that development within the 1(b) zone:

Does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.

6 Similarly, cl 12(1)(e) of LEP 1990 provides that consent shall not be granted unless, if relevant, consideration has been given to the effect of the carrying out of the development on the cost of providing, extending and maintaining public amenities and services to the development. Also, cl 61 relevantly requires that consent shall not be granted for the subdivision of land that is subject to bushfire hazard unless adequate provision is made for road egress.

Advertising and council's decision

7 The application was advertised and seven submissions were received. These submissions raised objections to the proposed subdivision mainly in relation to the adequacy and conditions of Gabulah Road, including the bridge and river crossing and its capacity to accommodate the additional traffic likely to be generated by the development of the lots in the proposed subdivision. During the hearing four of these residents gave additional evidence in relation to these concerns.

8 A council officer's report was prepared recommending refusal of the application and the council accepted this recommendation with a notice of determination for refusal dated 20 April 2006 being issued setting out the reasons for this decision. These reasons mainly relate to: the adequacy and need for the upgrading of Gabulah Road; the costs associated with the upgrading; and bushfire safety requirements.

The issues

9 The final statement of issues identifies two issues, which in essence are:

1. The development application does not demonstrate that adequate vehicular access to the site is available or that the applicant is prepared to accept conditions of consent that require the upgrading of Gabulah Road to secure adequate access.

2. If the applicant is prepared to accept conditions requiring the upgrading of Gabulah Road, what standard of upgrade or conditions of consent are reasonable in the circumstances having regard to: the use of the road; council's adopted Rural Roads Policy; and the Planning for Bushfire Protection Guidelines ("the bushfire protection guidelines").

10 Subject to the applicant agreeing to upgrade the road sufficient to accommodate bushfire fighting vehicles there are no other issues associated with bushfire safety of concern to the council. Taking this into account the issues for the determination of the Court are:

• To what extent is Gabulah Road required to be upgraded by the applicant on the basis of additional traffic generated by the development of the lots in the subdivision and to facilitate access and egress for bushfire fighting vehicles.
• Following the necessary upgrading of Gabulah Road should the applicant be responsible for its long-term maintenance.

Gabulah Road upgrading

11 The issue of the upgrading of Gabulah Road was the subject of consideration by the two engineers, Mr T. Wilson (on behalf of the council) and Mr T. Clarke (on behalf of the applicant) and the Court-appointed town planning expert Mr S Carroll who also has expertise in relation to bushfire matters. There was agreement that the existing gravel road between and including the river crossing and the site needs to be upgraded and this is provided for in the (mainly) agreed conditions of consent.

12 Condition 8 requires the provision of a 4 m wide carriageway and passing bays to meet the requirements of the NSW Rural Fire Service for the presently un-maintained section of the road. There are similar requirements in Condition 7 for the road within the subdivision. Condition 9 requires the provision of a 6 m wide carriageway over the 660 m length of the existing maintained section of Gabulah Road. Condition 10 requires the upgrading of the existing approach tracks (both sides) to the Patterson River crossing.

13 Having inspected the roads and considered the evidence of the experts, I am satisfied that these conditions are reasonably responsive to the development application and should be imposed, thus resolving the first issue. There was no dispute that these conditions can be lawfully imposed, being conditions that serve a planning purpose and are relevantly related to the subject development. Also, the road upgrading works would be appropriately responsive to the requirements of council's Rural Roads Policy.

Gabulah Road maintenance

14 Proposed Condition 23 provides that in accordance with its Rural Roads Policy, council will not be responsible for the ongoing maintenance and care of that part of Gabulah Road that is not already identified as being included in the maintained section of this road. Condition 28 requires that the owners of the lots created by the subdivision must maintain this same part of Gabulah Road in a trafficable condition with appropriate cross fall. This is to be effected by regular grading and the clearing of associated drains. These conditions are opposed by the applicant because the road is a public road, not a private road. Also that part of the road not presently maintained by the council can and will be maintained by landowners on an as needs basis as is presently the case.

15 As indicated above cl 12(1)(e) of LEP 1990 requires that consideration be given to the cost of providing, extending and maintaining public amenities and services to the development. I understand that the council only maintains part of Gabulah Road because it does not have the resources to maintain it all. Moreover under the Roads Act 1993 the council is under no obligation to provide a minimum level of service in respect to the maintenance of roads. Consequently as envisaged by the LEP, the council contends that the applicant should be required to accept this responsibility.

16 In relation to the maintenance of Gabulah Road, I do not accept the submissions made on behalf of the council. Gabulah Road is a public road that can be used by the public, and in this regard is no different to any other road in the local government area. Whilst I have considered it, I give no determinative weight to the council's Rural Roads Policy in relation to this issue. I can understand the council's financial constraints in relation to the maintenance of roads, especially low use roads such as this but this cannot, as a matter of principle, be a reason to require a landowner to maintain a public road.

17 Part of Gabulah Road close to the subject land will, most likely be entirely utilised by the owners of the proposed lots and visitors to those lots. In this context it is to be noted that this road already provides public access to the subject two existing lots. The remainder of the road will be additionally utilised by other landowners and their visitors. In these circumstances it would be plainly unfair to require the owners of the subject land to maintain the road as sought by Condition 28. Hence the condition is deleted. Condition 23 is also deleted as this is not an appropriate matter for inclusion as a condition of development consent.

Conclusions

18 Having inspected the site and the roads leading to it and having considered the expert evidence I have been persuaded that conditional development consent should be granted. Taking into account the proposed conditions dealing with the upgrading of Gabulah Road and including the river crossing I am satisfied that an appropriate level of access can be provided to and within the site.

19 The objectives of the zone and the particular requirements in cl 12 and 61 of LEP 1990 and cl 26 of LEP 2006 insofar as they variously deal with access and bushfire hazard are met. I am also satisfied that the vehicular access requirements of cl 26 in LEP 2006 is also met.

20 More generally the proposal meets the minimum lot size development standard applicable in the 1(b) zone and there was no suggestion that the remaining objectives of the zone have not been met or could not be met when the new lots are developed.

Orders

21 The orders of the Court are therefore:

1. The appeal is upheld.
2. Development application No. 234/04 for the subdivision of Lot 1 DP 1006931 and Lot 1 DP 178749 being land known as 52 Gabulah Road, Gresford, into four lots is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.
3. Exhibit D is retained.

___________________
T A Bly
Commissioner of the Court
rjs