Masterbuilt Pty Ltd v Tweed Shire Council

[2006] NSWLEC 156

Land and Environment Court

of New South Wales

CITATION:

Masterbuilt Pty Ltd v Tweed Shire Council [2006] NSWLEC 156

PARTIES:

APPLICANT
Masterbuilt Pty Limited

RESPONDENT
Tweed Shire Council

FILE NUMBER(S):

10827 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- conditions of consent, roads and drainage, s. 94 contributions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Tweed Roadn Contribution Plan S94 Plan No. 4.
Development Control Plan No 16 - Subdivision Manual

CASES CITED:

Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600;
Trehy & Ingold v. Gosford City Council [1995] NSWLEC 113

DATES OF HEARING:

21, 22 and 23/02/2006

 
DATE OF JUDGMENT: 

04/06/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Galasso, barrister
Instructed by Mr C. Gough
of Storey & Gough

RESPONDENT
Mr R. O'Gorman-Hughes, barrister
Instructed by Mr J. Smith
of Stacks/Northern Rivers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

6 April 2006

10827 of 2005 Masterbuilt Pty Limited v Tweed Shire Council

JUDGMENT

Introduction

1 This appeal relates to the deemed refusal of development application No 04/1058 which is for the subdivision of land at 38 McAllisters Road, Bilambil Heights into 45 lots including 35 urban residential lots, 9 rural residential lots and 1 drainage lot.

2 The site is situated on the northern side of McAllisters Road approximately 7 km from the business centre of Tweed heads. It comprises four separate lots: Lot 1 DP 302949; Lot 1 DP 725165; Lot 5 DP 574986; and Lot 2 DP 30714. Together these lots have an area of 13.375 ha.

3 According to the council's Meeting Task Sheet for the council meeting on Wednesday, 5 October 2005, council considered a town planning report that recommended approval of the application subject to a number of conditions. At the meeting it was resolved, inter alia, that consent orders be entered into, approving the application in accordance with the recommended conditions plus a number of additional conditions relating to cut and fill and contributions. It is now apparent that the council does not object to the granting of consent subject to the draft conditions in Exhibit 13.

4 On behalf of the respondent council, expert evidence was given by:

• Mr R Hornby-civil engineer
• Mr P Morgan-civil engineer
• Ms D O'Brien-town planner.

5 On behalf of the applicant expert evidence was given by:

• Mr M Findlater-civil engineer
  

6 The issue in this case involves conditions 14 and 68, which respectively involve contributions based on s 94 of the Environmental Planning and Assessment Act 1979 ("the EPA act") and road construction requirements. Condition 68 is accepted but condition 14 is, in part, disputed. The remaining conditions are not in dispute.

Condition 68 - s94 contribution

7 Condition 68 requires the payment of a monetary contribution in the order of $380,000 for roads, open space, and a range of community facilities including trees library facilities bus shelters and cycleways. This contribution includes an amount of $175,720 which is based on the Tweed Road Contribution Plan S94 Plan No 4 (“the Road Contributions Plan”).

8 In Table 2 of the Road Contributions Plan, household contributions (ie contributions required for additional lots) are indicated for particular localities. For Bilambil Heights, the locality in which the site is situated, the Standard/Total Contribution per lot is $4,393 (“the per lot contribution”). Multiplying this figure by the 40 additional residential lots (ie 45 – 5) in the proposal equates to the $175,720 referred to above.

9 In essence the per lot contribution for Bilambil Heights was calculated by first determining the roads throughout the shire that need to be upgraded extended or created on the basis of future development facilitated by land use zonings and the associated costs of such roads. Such costs include land acquisition, works associated with and including the construction of road pavement, kerb and guttering and associated drainage. By means of a complex mathematical formula these costs are apportioned throughout the shire on basis of identified localities so that all new development makes an appropriate contribution to the council for all of these roads. Except for changes involving the upgrading of McAllisters Road, there was no suggestion that the basis for and the calculation of the per lot contribution was incorrect.

10 As a consequence there can be no doubt that, by the payment of the per lot contribution for the additional lots, the applicant will have paid its fair share towards the upgrading of McAllisters Road as well as other roads in the shire.

11 Schedule 6 to the road contributions plan comprises a lengthy matrix of costs associated with the various planned road construction projects in the shire. It is divided into road corridor localities, the site being included, as referred to above, in the Bilambil Heights locality. Relevantly to this application the schedule refers to Item 23 Construct McAllisters Road on existing alignment ("the McAllisters Road upgrading") as having a total cost of $856,300. (This item was formerly for the realignment of McAllisters Road at a cost of $1,439,600 which realignment is now no longer proposed). I understand that this amount was calculated on the basis of an 11m wide pavement being the appropriate width according to Development Control Plan No 16 - Subdivision Manual ("the DCP") and which I accept as being the correct and relevantly applicable standard for this purpose. More particularly the costs associated with the 11 m wide construction include verges, road pavement, kerb and guttering and associated drainage, supporting batters and structures.

12 I also understand that the per lot contribution of $4,393 was not adjusted to take into account the abandonment of the realignment proposal and the lower cost of the upgrading. At first it would seem that the reduction in cost of about $580,000 (ie $1,439,600 - $856,300) would make little difference to the total amount in Schedule 6 of more than $122 million. However if a recalculation were done taking into account that the contributions plan methodology allocates a higher proportion of the costs within a road corridor locality to that locality, the reduction would be significant. Whilst the applicant does not seek to have the per lot contribution of $4,393 reduced, despite the apparent justification that it should be, this may be a matter that the council needs to consider.

13 In the circumstances I cannot but accept that the total contributions required by the road contributions plan, of $856,300 will be sufficient for the full upgrading of McAllisters Road. This means that the applicant's fair share for these works should be no more than the $4,393 per lot contribution as determined by the road contribution plan.

14 However, absent the complete upgrading provided for in the road contributions plan which will undoubtedly be required in due course, there was no dispute that the additional traffic generated by the development of this subdivision will require at least a limited upgrading of McAllisters Road. The applicant does not oppose a condition that would require it to provide an upgrading of this road to a level warranted by the additional traffic generated by the subdivision proposal.

15 Proposed condition 14 requires the preparation of engineering plans and specifications to accompany the construction certificate application. Such plans and specifications are to provide for:

(i) The widening of McAllisters Road along the full frontage of the site,
(ii) The construction of an access Street,
(iii) The construction of a stormwater drainage system,
(iv) The construction of cul-de-sac,
(v) The method of construction of the new intersection, and
(vi) Specific elements associated with Road upgrading drainage and other works.

16 The specific elements in VI above comprise:

1. General design criteria,
2. Scope of work, including length and width of road, cross-section and road widening,
3. Levels of pavement,
4. Road drainage, including general design, transverse drainage, road drainage and upstream catchments,
5. Retaining walls generally including guard rails and safety barriers.

17 With the exception of several significant elements of condition 14, the applicant did not oppose it. Those elements of the condition that were opposed comprise:

• 14(i) in so far as it requires that the road widening be 11 m instead of the proposed 7.5 m road width,
• 14(vi)2(b) in so far as it fails to reflect the proposed 7.5 m road width,
• 14(vi)2(c) in so far as it requires: a road width of 11 m rather than the proposed 7.5 m; and a verge width of 4 m rather than the proposed 3.5 m,
• 14(vi)3(b) insofar as it requires the construction of a culvert under McAllisters Road

18 More particularly condition 14(i) requires the upgrading of McAllisters Road along the full length of the proposed subdivision including an 11 m wide road pavement, kerbing and guttering and stormwater drainage. As already indicated the applicant contends that the upgrade standard specified in this condition is in excess of the standard of upgrade that is required as a consequence of the subject development application. Instead it is the standard required to provide traffic capacity resulting from the redevelopment of lands throughout Bilambil Heights and beyond. In my opinion, even though the site is included in the Bilambil Heights area there is plainly no justification that the proposed subdivision should be responsible for the construction of the full width upgrade of this section of McAllisters Road.

19 I understand that this upgrading of McAllisters Road will provide for traffic volumes in the order of 5,000 vehicles per day, including commuter buses. At present McAllisters Road carries about 500 vehicles per day including two return trips made by a school bus. The proposal will increase this to about between 790 and 950 vehicles per day. I do not know when traffic volumes on McAllisters Road are likely to reach a level that requires full upgrading or when population growth would justify the provision of a commuter bus service but I expect that this is some years away. On this basis I accept that the full width construction of the road as sought by the council is not warranted at this time.

20 In reaching this conclusion I have taken into account the evidence given by the council experts that:

• McAllisters Road cannot be an access road because it is longer than 350 m.
• If the road remains at its current width the additional traffic generated by the proposal could make unsafe.
• The council is financially unable to provide the full upgrade.
• The parking of cars on this section of the road could be dangerous.

21 I have also taken into account the evidence of Mr Findlater that some road widening was necessary as a result of the proposal and that a target design of 40 kms per hour would be appropriate for a 7 m carriageway. I also accept his evidence that a verge width of 3.5 m is, in the circumstances sufficient.

The DCP requirements

22 The DCP in Table 4.23.2 sets out the function and characteristics of various categories of roads in urban areas, including laneways access streets, neighbourhood connectors and arterial roads. Once the zoned residential areas in Bilambil Heights are developed McAllisters Road will become a low-volume neighbourhood connector road carrying up to 5000 vehicles per day. At present McAllisters Road, which presently carries less than 1,000 vehicles per day, is categorised as a narrower access street.

23 The additional traffic generated by the proposed subdivision will see McAllisters Road categorised as a wider access street capable of carrying up to 3,000 vehicles per day. A street reserve and pavement width of 7.5 m is required. This width will facilitate parking within the street reserve. Given the likely total traffic volumes on the road and the construction of the new intersections in accordance with the otherwise agreed conditions I do not accept that a road width of 7.5 m would be inherently unsafe especially taking into account that this is a 50 kms per hour environment.

24 Whilst some concerns arose in relation to the inevitable parking of some resident's or associated vehicles on the road I accept that this is, according to Table 4.23.2 able to be accommodated. Also, on-street car parking is a matter of the application of appropriate parking controls by the council if and when necessary.

25 Table 4.23.2 provides that wider access streets can cater for higher traffic volumes over longer distances, closer to neighbourhood centres, more intense if land and high-density land-use or where flexibility is required for future land-uses.

26 Wider access streets with a bus route require a 9 m pavement width. There was no suggestion that the development of this subdivision would generate a need for a commuter bus service. Taking into account that the existing school bus service apparently operates in a reasonably satisfactory fashion on the existing McAllisters Road construction, being about 6 m in width, the proposal to widen the pavement to 7.5 m and taking into account the additional traffic generated by the proposal, I do not accept that the pavement needs to be widened to 9 m and certainly not 11 m as a consequence of the proposal.

27 Condition 14 is sought by the respondent to be imposed pursuant to s 80A (1) (f) of the EPA Act and there was no dispute that this section of the act provides the relevant legislative power for such a condition. It is now well established that conditions of development consent should not only meet relevantly applicable statutory requirements (if any) but also meet the requirements of the so-called Newbury tests (see Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600). These tests are whether the condition is:

(i) for a planning purpose;
(ii) fairly and reasonably relating to the development; and
(iii) not being so unreasonable that no authority would have imposed it.

28 As for the first test, there was no dispute that the upgrading of McAllisters Road is for a planning purpose. As for the second test the applicant argued that the condition in the form sought by the council does not fairly and reasonably relate to the subdivision proposal. This is an objective test and as I have already observed, the full upgrading of McAllisters Road will be required as a consequence of the residential development of more expansive areas of land beyond, whilst including this site. If the applicant were to be required to finance and construct a road which benefits significantly more traffic than would be generated by the development itself this could not be said to fairly and reasonably relate to the subject development. In this circumstance I do not accept that the condition proposed by the council meets this test. Conversely I agree that the revised version of the condition as agreed to by the applicant would meet this test.

29 Similarly, whilst TREHY & INGOLD v. GOSFORD CITY COUNCIL [1995] NSWLEC 113 involves s 94 of the EPA Act, the resultant principle regarding contributions for roadworks can be applied here. At 274 Talbot J, in dealing with a question involving the placing of an unfair and thus unreasonable burden on the development under consideration, said: Where there is a disproportionate burden on the land to be developed, it cannot be said to reasonably relate to the development. In the case before me I am satisfied that, in relation to roadworks, the effect of council's condition 14 would be to place a disproportionate financial burden on the subject land.

30 As for the third test clearly the council believes that the imposition of their version of condition 14 would not be unreasonable. However for essentially the same reason as I have given in relation to the second test I agree with the applicant that, in relation to roadworks, the imposition of this condition would be unreasonable. Moreover the fact that condition 68 requires the applicant to pay a fair proportion, probably even more than a fair proportion, of the cost of the ultimate upgrading of McAllisters Road, this makes the imposition of the condition even more unreasonable.

31 Finally here I accept the submission that no credit against s 94 contributions should be given to the applicant if a roadway is constructed to a width of any less than the 11 m required for the future upgrade of McAllisters Road. In this context I accept the council engineer’s evidence as to the likelihood that batters and possibly drainage works will need to be reconstructed if the full width is not provided at this time

Condition 14 - trunk drainage

32 In relation to drainage, the applicant's proposed stormwater plan indicates that proposed lot 20, the drainage lot is to provide for stormwater from parts of McAllisters Road and the natural watercourse/catchment generally to the southwest of the site. I understand that this lot can accommodate below ground pipes and an overland flow path.

33 The drainage plan also shows a realignment and amplification of the existing stormwater pipe under McAllisters Road to enable a direct connection into the drainage lot. I understand that this pipe is presently significantly undersized relative to certain rainfall events; hence from time to time stormwater from the catchment flows over the road.

34 The applicant now opposes the requirement in condition 14(vi)3(b) for the realignment and amplification of this stormwater pipe under. This means that instead of there being a direct, slightly angled connection into the drainage lot, water will need to flow in a “Z” configuration, involving two changes in direction, one at a right angle. In this regard I accept the engineering evidence that this would be a poor engineering design which would, in certain storm events, result in water flowing across a number of residential lots. This is unacceptable and thus realignment of the pipe is essential.

35 This watercourse comprises part of the trunk drainage system for the locality and is thus the responsibility of the council. However the need for the realignment is a direct consequence of this development proposal. Drainage is a planning purpose and in my opinion the realignment fairly and reasonably relates to the development and hence becomes the responsibility of the applicant.

36 I have reached this conclusion notwithstanding that the amplification of this pipe is not required as a result of the proposal and would, in this particular context, place a disproportionate financial burden on the subject land. In these circumstances it would have been reasonable for the council to make a contribution, but I am unaware of any mechanism to facilitate this. The transverse road drainage requirement in condition 14(vi)3(b) is therefore retained.

37 Finally, the requirement for other transverse drainage works under McAllisters Road near the boundary of proposed lots 3 & 7 and proposed lot 41 has been deleted and I accept that these works are not critical.

Conclusion

38 For the above reasons I have decided that the appeal should be upheld in relation to the width of McAllisters Road and that condition 14 should be amended accordingly. Conversely, in relation to drainage I have not been persuaded that the development should proceed in its present configuration without the realignment of the stormwater pipe under McAllisters Road.

39 It was submitted on behalf of the council that the applicant should not be granted the amendments to condition 14 because these amendments effectively comprise a substantial amendment to the application. Moreover condition 14 is consistent with the original application, which makes reference, in the plans, the Statement of Environmental Effects and the Engineering Impact Assessment, to an 11 m wide road.

40 The principal effect of the amended condition is that McAllisters Road is now required to be constructed to a width consistent with the traffic needs associated with the proposal. There are no other significant changes to the proposal that involves a 45 lot subdivision of land having an area of about 13 ha. In my opinion the development will remain substantially the same as that described in the development application.

41 In all of the circumstances and despite the fact that the council engineers believe that the 11 m pavement is the best option, I do not accept that the amendment to condition 14 amounts to such a substantial amendment that I am prevented from determining it in the manner sought by the applicant.

42 The orders of the Court are therefore:

1. The appeal is upheld.
2. Development application No 04/1058 for the subdivision of land at 38 McAllisters Road, Bilambil Heights into 45 lots including is determined by the granting of development consent subject to the conditions in Annexure A hereto
3. Exhibit A is retained

_______________________
TA Bly
Commissioner of the Court
ljr