John Watts v Mid Coast Council

[2018] NSWLEC 1012

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

John Watts v Mid Coast Council [2018] NSWLEC 1012

Hearing dates:

4-5 December 2017

Date of orders:

06 March 2018

Decision date:

16 January 2018

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The orders of the Court are:

(1)       The applicant is granted leave to rely on amended plans at Annexure A;

(2)       The appeal is upheld;

(3)       Consent is granted to Development Application No. DA/60/2014 for subdivision of the land known as Lot 214 DP 22434 (6 The Lakes Way, Elizabeth Beach) into two allotments subject to conditions in Annexure B;

(4)       The exhibits are returned with the exception of the subdivision plan in Annexure A, the conditions in Annexure B and Exhibit A.

Catchwords:

DEVELOPMENT APPEAL: Subdivision application – whether the access to the new allotments is safe and consistent with the relevant planning controls – does the site have legal access over right of carriageway.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy 71- Coastal Protection

Cases Cited:

Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156
Ali v Liverpool City Council [2009] NSWLEC 1327

Category:

Principal judgment

Parties:

John Watts (Applicant)
Mid Coast Council (Respondent)

Representation:

Counsel:
Ms. L Saw (Applicant)
Solicitors:
Mr. A Pickup, Local Government Legal (Respondent)
Mr R Creighton (Agent) (Applicant)

File Number(s):

2017/00214401

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal has been lodged by the applicant in response to the refusal by Mid Coast Council of consent for the subdivision. The application seeks approval for the subdivision of land known as 6 The Lakes Way, Elizabeth Beach into two allotments. The new allotments proposed to be created are:

• Lot 1 with an area of 570m²; and

• Lot 2 with an area of 524m².

2. The Council maintains the application should be refused for the following reasons:

1. Vehicular access to and from proposed Lot 1 across a right of carriageway (‘ROC’) from Lakeside Crescent is considered to be unsafe; and

2. The proposed access arrangements for the subdivision are inconsistent with Council planning policies.

3. During the proceedings Council also argued that the subject land does not have a legal right to ROC that provides access to proposed Lot 1.

4. During Council’s assessment of the application the proposal was notified and no submissions were received by members of the public.

The site and its context

5. The site is legally described as Lot 214 in Deposited Plan 22434 and has an area of 1,094m². The site is presently vacant with a number of trees and a managed understorey. There is a fall of approximately 11 metres from the western boundary to the eastern boundary of the site. The eastern boundary of the site adjoins the ROC.

6. The subject site is located to the eastern and higher side of The Lakes Way, between the intersection with Lakeside Crescent and Bellman Avenue. The applicant argues that the subject land currently has vehicular access from Lakeside Crescent to the north via a ROC over properties to the north and to the south via a right of access (‘ROA’) from Bellman Avenue over the unmade road reserve.

7. The existing road network can be seen in the following aerial photograph:

The Subdivision

8. The subdivision proposes to create two allotments; a front lot (Lot 1 with an area of 570m²) utilising the eastern portion of the existing site and a rear western lot (Lot 2 with an area of 524m²) utilising the remaining land.

9. Vehicular access to Lot 2 will be from a ROA that connects with Bellman Avenue. A loop road within proposed Lot 2 will allow for forward exit and egress.

10. Vehicular access to proposed Lot 1 will be from an existing informal vehicular access that connects with Lakeside Crescent. The concept design indicates that access to and from Lot 1 will be in a forward direction.

11. It is acknowledged by the parties that the existing informal vehicular access connecting with Lakeside Crescent is not wholly contained within the legal boundaries of the ROC.

Planning Controls

12. The site is mapped as bushfire prone land. In accordance with Section 79BA of the Environmental Planning and Assessment Act 1979 (‘the Act’) the application is integrated development. The NSW Rural Fire Service has issued a Bushfire Safety Authority.

13. The site is in a coastal zone, but not within a sensitive coastal location. The Council is satisfied that the proposed subdivision is satisfactory having regard to State Environmental Planning Policy 71- Coastal Protection (Exhibit B).

14. Great Lakes Environmental Plan 1996 (‘LEP 1996’) applies to the site. Pursuant to LEP 1996 the site is zoned 2(a) Low Density Residential and subdivision is a permissible form of development with consent. The objectives of the zone are:

Objective (a) to enable residential development so that buildings within the zone will consist primarily of housing that generally does not exceed a height of two storeys and has private gardens.

Objective (b) to enable other development which:

(i) is compatible with a low density residential environment, and

(ii) affords services to residents at a local level,

(iii) is unlikely to adversely affect the amenity of residential development within the zone, and

(iv) is unlikely to place demands on services beyond the level reasonably required for low scale housing development.

15. The development application the subject of the appeal was originally lodged on 23 August 2013, prior to the gazettal of Great Lakes Local Environmental Plan 2014 (‘LEP 2014’). Relevantly the saving provision relating to development applications is provided by clause 1.8 A as detailed below:

1.8A Savings provision relating to development applications

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

Note.

However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable

16. The Respondent argues that the Court should place substantial weight on LEP 2014 given it is the currently gazetted instrument (relying on Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289).

17. In particular the respondent identifies cl. 7.21 of the LEP 2014 which states:

7.21 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

(Emphasis added)

18. Development Controls Plan 31- Subdivision (‘DCP 31’) applies to the development. The clauses of DCP 31 relevant to the appeal are:

Clause 3.3.2 Controls and Design Principles

Controls

Residential Battle Axe lots

Where the subdivision is not in association with a multiple dwelling development (includes dual occupancy development) or an integrated housing development, battle axe blocks will only be permitted where:

a) One shared driveway can be provided for access to both front and rear allotments [Driveway design and location must take into account the provisions for parking and driveways in Council’s Residential DCP]; and

b) the lot adjoins an area of open space or where the site or outlook provides enhanced amenity (does not infringe upon privacy of surrounding lots).

…

Rights of Way

Rights of way are not favoured for site access.

Rights of way will not be approved except in the following circumstances:

as reciprocal rights of way for battle axe blocks; and

as reciprocal rights of way in approved existing multiple dwelling development subdivisions.

No more than 2 lots will have an interest in a right of way in an urban area.

…

19. Development Controls Plan 39- Pacific Palms (‘DCP 39’) applies to the development. The clauses of DCP 39 relevant to the appeal are:

Part 4 – Controls for residential development

Controls

Density and Subdivision

Objective: to maintain the existing low density amenity and coastal village character of the locality.

Controls:

density is not to exceed one dwelling per 450m²;

the minimum lot size is 450m² excluding any accessway, driveway or roadway;

subdivision of vacant land is to include building envelopes and access way provisions for any vacant allotments created.

The minimum frontage of any newly created allotment in a greenfield area is to be 15m

All subdivisions are to comply with the technical provisions within DCP 31 Subdivision.

The issues

20. The key issue in the proceedings is whether the proposed access to proposed Lot 1 over the existing vehicular access/ ‘ROC from Lakeside Crescent is satisfactory. The areas of dispute in relation to this issue are:

1. the weight to be given to the fact that the legal extent of the ROC on the relevant deposited plans does not align with the physical access constructed on site; and

2. whether the intersection of the ROC with Lakeside Crescent represents a safety risk due to restricted sightlines for vehicles entering and exiting the ROC.

21. The parties agree that the proposed access to Lot 2 over the ROA connecting the service road from Bellman Avenue is acceptable.

22. A secondary issue in the proceedings is whether the deferred commencement condition proposed by the Council is appropriate. The condition seeks to address the misalignment of the ROC on site by requiring the reconstruction of the access way with the alignment shown on the relevant deposited plan.

The Experts

23. Consistent with the issues in dispute in the proceedings the parties engaged experts in town planning and traffic engineering.

The experts for the applicant were:

1. Planning: Mr Kerry Nash

2. Traffic Engineering: Mr Ross Nettle.

The experts for the respondent were:

3. Planning: Mr Steve Andrews

4. Traffic Engineering: Mr Ross Wheatley and Mr Hartman.

The Evidence

Does proposed Lot 1 have legal access from Lakeside Crescent?

24. It is agreed between the parties that in 1971, a 3.66 metre wide ROC was created at the rear of the subject site, and on all lots to the north, connecting with Lakeside Crescent (Exhibit A).This was a private agreement between landowners.

25. Within the statement of environmental effects, attached to the original development application, the applicant states:

Traffic

The top access is a Right of Way from Lakeside Crescent.

A nearby crest means that a right turn into and out of the Right of Way is unsafe. The customary means of entry and exit is using left turn only.

(Exhibit B)

26. The “right of way” (ROC) from Lakeside Crescent is also identified on the proposed plan of subdivision.

27. In evidence before the Court is a Memorandum of Transfer and Grant of Easement that established a ROC along all the lots between Lakeside Crescent and Lot 216, located at the end of the ROC. This document identifies Lot 216 as the only beneficiary of the ROC (Exhibit B). The subject site (Lot 214) is not identified as a beneficiary of the ROC.

28. In addition to the above a covenant was created in 1978 that sought to restrict the construction of certain structures within land adjacent the ROC (Exhibit 2). The applicant submits this covenant acts to provide additional manoeuvring or passing space adjacent the ROC. The affected lots are Lot 209, 210, 211 and 214. The subject site is not burdened with such a covenant.

29. By reference to the various surveys tendered (Exhibit I, Exhibit H) the experts agree that the ROC on the title document referenced in paragraph [27] is not on the same alignment as the location of the physical track. This is summarised by Mr Hartman as follows:

A detail survey plan prepared by a Registered Surveyor for adjoining Lot 1 SP 700145 – Pacific Palms Resort confirms that the existing constructed gravel track is constructed only partly within the easement corridor and encroaches significantly into resort land. Furthermore, it appears that the track encroaches onto Nos. 209, 210 & 211 The Lakes Way prior to connection to Lakeside Crescent. No endorsement by the affected landowners has been lodged with the development application in order for any upgrade works to be undertaken on their land.

(Exhibit D)

30. It is the evidence of Mr Nash that the owners of the lots adjoining the ROC from Lakeside Crescent have adopted a practical and cooperative arrangement to gaining vehicular access to their land. It is his evidence that this practical approach should be maintained by the current application for subdivision consent.

31. In his assessment Mr Nash places emphasis on the reliance of the application on obtaining vehicular access from the ROC for lot 1. He argues this is equivalent to the redevelopment of the site for a single dwelling. Despite the evidence that the ROC is substantially outside the alignment of that shown on title, it is Mr Nash’s conclusion that the current ROC (without upgrade or reconstruction) is a satisfactory means of access to proposed Lot 1.

32. Mr Pickup argues that the applicant has failed to demonstrate that the subject site has the legal right to gain access along the ROC from Lakeside Crescent. It is his submission that the covenant in Exhibit 2 does not create a ROC and only restricts (by agreement) works in locations adjacent the ROC to facilitate passing of vehicles. Given this submission he concludes that the application in its current form cannot be approved as the application lacks a legal vehicular access for proposed Lot 1.

Access to Proposed Lot 2

33. Proposed Lot 2 gains vehicular access from a ROA over Lot 1 DP 575584 and then via Bellman Avenue. This ROA is shown on the deposited plan for the relevant lot as a right benefitting lot 214 (the subject site) (Exhibit L).

34. It is the agreed evidence of the three traffic engineering experts that vehicular access to the existing and proposed lots over the ROA from Bellman Avenue provides a safer access to the land than the ROC from Lakeside Crescent.

35. The planning experts conclude that this vehicular access from Bellman Avenue is satisfactory to service the proposed lots.

36. It is the evidence of Mr Nash that access to both lots from the ROA from Bellman Avenue could be achieved by creating a four metre wide access within the site that runs along the northern boundary. It is his evidence that this would then provide access to a platform in the middle of the site where any garaging for Lot 1 could be located.

37. It is the agreed evidence of the planners that an amended subdivision design that adopted the approach detailed by Mr Nash (reference paragraph [36]) would still achieve compliance with the minimum allotment size of 450m² in Council’s planning controls.

Consideration

38. I find that the evidence before the Court is inadequate for me to make a finding that proposed Lot 1 has legal access from Lakeside Crescent.

39. The reasoning that supports this conclusion is as follows:

1. the title documents tendered as evidence do not establish that the existing lot (Lot 214 DP22434) benefits from a ROC across the adjoining properties (all lots to the north) to connect with Lakeside Crescent;

2. the development application does not include owners consent from any of the owners of the lots to the north connecting with Lakeside Crescent for the use of the land for vehicular access, or the establishment of such an access;

3. A review of the survey’s tendered (Exhibit I, Exhibit H) and the evidence of the experts in the proceedings support a conclusion that approximately half of the existing ROC is not constructed within the legal alignment. Exhibit I also indicates that an existing retaining wall encroaches into the ROC alignment, along with other physical barriers. These encroachments currently act to physically restrain a vehicle from achieving access to the proposed Lot 1 within the legal alignment of the ROC;

4. I do not accept the evidence of Mr Nash that the existing informal and cooperative approach is able to be relied on as the basis for the grant of consent for access to a new allotment.

40. Mr Andrews and Mr Nash agree that vehicular access to both of the proposed lots is achievable from ROA at the end of Bellman Street. It is their agreed evidence that such an approach to the subdivision of the land is capable of providing vehicular access to the middle of the current allotment and that the resulting subdivided lots could comply with the minimum allotment size.

41. I note that the applicant has previously resisted an amendment to their subdivision design to provide access to both allotments from Bellman Avenue.

42. During the proceedings Ms Saw sought the Court’s consideration of such a subdivision design if the access of the ROC from Lakeside Crescent was not supported by the Court.

43. Ms Saw submits that the Court should consider whether directions, for the applicant to amend the design consistent with paragraph [40], are appropriate. This approach has been referred to by the Court as an “Amber Light” and is described in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [66] as follows:

66. It has been a consistent approach of the Court, over recent years in development appeal proceedings to assess proposal on what has been described as an “amber light” basis. This approach means that the Court not only considered the question of whether the proposal should be approved in the form that is before the Court but also asking whether the proposal is capable of approval, with specified modifications imposed by the Court, within the scope of the present proceedings. It is in that fashion that I approach the present appeal.

67.  Indeed, consistent with this approach, during the course of the expert evidence in all three disciplines – planning, heritage and arboriculture – that I tested a number of “what if?” propositions on those experts. Such propositions were put not on the basis that I had reached even any tentative conclusions concerning any aspect of the proposal but in order to explore whether there were any modifications to the proposal that would cause the council to indicate that an acceptable design had been achieved if such modifications were to be adopted by the Society.

44. In his decision in Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156 Sheahan J identifies [at 33] that the “amber light” approach either arises from the bench or from a party who requests the opportunity, usually as a backup position, secondary to its primary claim that its proposal should be accepted. At [35] Sheahan J, by reference to previous cases, summarises the characteristics of the scope of changes sought in an amber light approach as follows: the suggested amendments must not significantly alter that proposal, they must have merit, be identifiable and have a scope that is easy to address (Ali v Liverpool City Council [2009] NSWLEC 1327 at [120]). Relevantly Sheahan J concludes at [36]:

They may, but not necessarily should, render the proposal before the Court acceptable to the respondent consent authority (Benevolent, at [67], Ali, at [286]).

45. In this matter I am satisfied that the change sought to the access for proposed Lot 1 to be from Bellman Avenue is discrete and has a defined scope. A review of the history of Council’s consideration of the subdivision indicates that Council has previously sought such an amendment from the applicant, including the provision of time for the applicant to make such a change (Exhibit B).

46. In coming to this conclusion, it does not follow that approval will be granted if an amended subdivision design is provided consistent with paragraph [40]. The final plans and any proposed conditions will need to be assessed in accordance with s79C of the Act.

47. It is a matter for the applicant if they wish to amend their application. If the applicant does not wish to amend their proposal in accordance with the Directions; the appeal will be dismissed.

Directions

48. The Court directs that:

1. As detailed in paragraph [40] the applicant is to amend their subdivision design to facilitate access to both proposed lots from Bellman Avenue.

2. The applicant is to file and serve any amended subdivision plans consistent with (1) no later than 28 days from the making of these directions.

3. The respondent is to file amended conditions of consent consistent with this judgement within two weeks of the filing of any amended plans.

4. Subject to the Court being satisfied by the amended documentation, final Orders will be made in chambers.

5. Liberty to restore on two days’ notice.

Addendum made on 6 March 2018

49. Consistent with the Directions on 16 January 2018 the Applicant amended their subdivision plans and filed them with the Court on 29 January 2018.

50. Council filed an updated set of proposed conditions of consent incorporating the new subdivision plan on 28 February 2018.

51. Following receipt of the Councils draft conditions the parties made submission in relation to proposed condition 4. It reads:

Engineering construction plans

Prior to the issue of a subdivision construction certificate, engineering construction plans and specifications must be submitted to and approved by the certifying authority. The plans must include details of the works listed in the table below in accordance with Council’s current design and construction manuals and specifications. All works must include the adjustment and/or relocation of services as necessary to the requirements of the appropriate service authorities.

Required work	Specification of work
Service road upgrade	Upgrading of the existing service road access from Belman Ave. to the southern boundary of proposed Lot 2 and the battle-axe handle providing access to proposed Lot 1 shall comply with the requirements of Section 4.1.3 (2) of " Planning for Bush Fire Protection 2006".
Access battle-axe handle	A 4 metre wide reinforced concrete driveway (or equivalent), together with all necessary services/service conduits (water, sewer, telephone, power, stormwater) within the access handle of proposed Lot1.

Reason:   To ensure works within Council’s Road Reserve are constructed to a suitable standard for public safety.

52. Ms Saw for the applicant submits an objection to the condition as follows:

Clause 4.1.3(2) of Planning for Bushfire Protection 2006 requires  the Bellman Ave requires access to be 6.0 metres wide (see Figure 4.5). As the easement to the subject site is only 3.84 metres wide it will be impossible to comply with Condition 4 which is contrary to the intent of the Court’s determination

53. In response to the applicants objection the Council clarified the intent of the condition as follows:

Condition 4 only requires the preparation of engineering construction plans for the identified works to be submitted. The requirement for the works is set out in the GTAs issued by the NSWRFS under Condition 26. The majority of the upgrade works would occur within the area which is the Council road reserve and the width of the trafficable carriageway in the condition is indicated to be 4m in width. However, that can be reduced to a width of 3.5m for a short distance if required according to the condition. If the area of the easement over any private property is only 3.84 m then the works in that section could be reduced to that width if required.

54. On the basis of the submission I am satisfied the proposed condition is consistent with the intent of s4.13(9) and s4.17 of the Act and should be imposed.

55. Following a review of the documentation filed I am satisfied they are consistent with my directions and accordingly I am satisfied it is appropriate to grant consent to the development.

Orders:

56. The orders of the Court are:

1. The applicant is granted leave to rely on amended plans at Annexure A;

2. The appeal is upheld;

3. Consent is granted to Development Application No. DA/60/2014 for subdivision of the land known as Lot 214 DP 22434 (6 The Lakes Way, Elizabeth Beach) into two allotments subject to conditions in Annexure B;

4. The exhibits are returned with the exception of the subdivision plan in Annexure A, the conditions in Annexure B and Exhibit A.

…………….

D M Dickson

Commissioner of the Court

Annexure A (98.2 KB, pdf)

Annexure B (79.7 KB, pdf)

Amendments

06 March 2018 - Addendum added and orders made.

Decision last updated: 06 March 2018