NICHOLSON and SHIRE OF BROOKTON - [2010] WASAT 168

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: NICHOLSON and SHIRE OF BROOKTON [2010] WASAT 168

MEMBER: MR J JORDAN (MEMBER)

HEARD: 17 AUGUST 2010

DELIVERED : 22 NOVEMBER 2010

FILE NO/S: DR 25 of 2010

BETWEEN: WILLIAM NICHOLSON
Applicant
AND
SHIRE OF BROOKTON
Respondent

Catchwords:

Town planning - Development - Conditions of approval for house on rural lot - Lot fronting unconstructed public road - Frontage required to constructed public road or registered carriageway easement over adjoining lot - Construction of registered easement to be to all weather standard - If easement used for access, then to be an easement in gross to the benefit of the Shire of Brookton - Council policy requiring construction of easement - Council policy requiring easement in gross in favour of Council - Standard of construction of existing carriageway to the house - Reasonableness of required standard of carriageway construction - Rural use of land - Application of policy

Legislation:

Land Administration Act 1997 (WA), s 195, s 196, s 196(5)
Planning and Development Act 2005 (WA), s 252
Shire of Brookton Town Planning Scheme No 3, cl 3.6.2, cl 5.6, cl 5.6(c), cl 7.4.1, cl 8.7, cl 8.7.3

Result:

Application for review allowed in part
Condition 6 varied to require that as an alternative to frontage to a constructed public road the registered easement over Lot 506 remain in place to provide a carriageway easement to Lot 7480
Condition 7 deleted and replaced weith a condition requiring construction of the crossover between Buckingham Road and the easement

Category: B

Representation:

Counsel:

Applicant: Mr E Samec
Respondent: Mr D McLeod

Solicitors:

Applicant: Samec Legal
Respondent: McLeods

Case(s) referred to in decision(s):

Teo and City of Stirling [2008] WASAT 55

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter was concerned with conditions imposed by the Shire of Brookton on a planning approval granted for a dwelling on Lot 7480, a rural lot with frontage to an unconstructed road reserve, but with the benefit of a carriageway easement across adjoining Lot 506.
Condition 6 of the approval required that Lot 7480 be provided with frontage to a constructed public road or that the carriageway easement be constructed to an all weather standard. Condition 7 required that if the carriageway easement was to be used for access then an easement in gross to the benefit of the Shire of Brookton for the purposes of maintaining the easement was to be placed on the title of Lot 506.
The applicant proposed the continued use of the easement for access to Lot 7480. This was because the applicant was not in a position to fund, and the Shire of Brookton was not in a position to contribute to, the cost of building the 1 kilometre length of public road required to provide access to Lot 7480.
The Shire of Brookton imposed the conditions because of concern that, without an easement in gross, the easement might be extinguished in the future without its knowledge, leaving Lot 7480 without access to a public road. Also, if the standard of the accessway in the easement deteriorated to what it considered an unacceptable standard because of inaction by the landowners, the Shire of Brookton had a right of access to carry out the required maintenance. The Shire of Brookton considered that it could avoid timeconsuming, costly and litigious future action if there was an easement in gross.
The Tribunal found that the site currently has guaranteed access to the public road system at Buckingham Road because of the benefit of the right of carriageway easement across Lot 506.
The Tribunal did not have evidence of a problem arising from difficulties with providing access to lots with no constructed public road frontage. The Tribunal considered it likely that future purchasers of Lot 7480 would require, as a condition of an offer, that there be a carriageway easement across Lot 506, and the likelihood of the carriageway easement being extinguished was remote. The Tribunal formed the view that a registered carriageway easement with a dominant tenement was sufficiently permanent to satisfy the town planning scheme requirements for the development of a house.
In respect of the standard of construction of the accessway, the requirement of the Shire of Brookton for all weather access for all 'rightofway vehicles' was considered to impose on the applicant a significant burden if the accessway is to be maintained at that standard of road construction. The Shire of Brookton would not maintain the accessway, but if it considered the standard had not been maintained, it would do the work and charge who it considered responsible.
The Tribunal formed the view that, for what is in essence a private driveway to a farm house, the accessway in the easement needed to be constructed to a standard that satisfied the landowner and need not be constructed to the complete standard for a public access easement required under the Shire Brookton policy.
The Tribunal upheld in part the application for review. Condition 6 was varied to require, as an alternative to providing frontage to a constructed public road, only that the registered carriageway easement over Lot 506 remain in place to provide a right of access to Lot 7480. Condition 7 was replaced with a condition requiring that the applicant construct the crossover between the easement and Buckingham Road to the standards of the Shire of Brookton.

Introduction

These proceedings involve an application by Mr William Nicholson (applicant), pursuant to s 252 of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of Brookton (respondent, Council or Shire) to impose conditions on the approval granted for the development of a single house on Lot 7480 Buckingham Road, Jelcobine (site).

Site and locality

The site has an area of 58.5 hectares. It is about 1,200 metres from north to south, 402 metres wide at the northern boundary and 633 metres wide at the southern boundary. The eastern boundary is irregular in shape and fronts a gazetted road reserve which is unconstructed adjacent to, and to the north and south of, the site.
Vehicular access is gained to the site via an easement 'for right of carriageway purposes', referred to by the parties as a carriageway easement, across Lot 506 abutting the site to the north. Certificate of Title Register No 7480/DP118945 for the site states in the Second Schedule:
1. J719124 Easement benefit for right of carriageway purposes see deposited plan 51001. Registered 28.4.2006.
Certificate of Title Register No 506/DP47772 for Lot 506 states in the Second Schedule:
1.J719124 easement burden for right of carriageway purposes see deposited plan 51001 registered 28.4.2006.
Deposited plan 51001 shows an easement about 14 metres wide extending from a gazetted road reserve southward about 900 metres across Lot 506 to the northern boundary of the site. The easement meets the northern boundary of the site 92.8 metres from the western boundary.
The eastwest road along the northern boundary of Lot 506 from which the easement extends is confusingly shown as 'Buckingham Road' on some plans and 'Beecroft Road' on others. In this matter, it will be referred to as 'Buckingham Road'. Buckingham Road is constructed to a rural gravel standard. A gravel constructed road from the north forms a T junction, with Buckingham Road about 50 metres to the east of the gate to the carriageway easement. Along this road is access to Brookton Highway to the north.
The location of the proposed house on the site is about 128 metres from the northern boundary and about 88 metres from the eastern boundary. There is an existing shed 120 metres to the southsouthwest of the house site.
Lot 506 adjoining to the north has a house about 300 metres south of Buckingham Road and about 200 metres west of the easement. Vehicular access is gained to the house on Lot 506 by travelling along the easement for about 100 metres and then turning eastward along an accessway which extends to the southeast to the house which is located on a hill.
About 150 metres to the west of the gate to the easement is a floodway, with Connolly Creek flowing over Buckingham Road. A second creek, flowing from the south across the site and then across Lot 506 parallel to the western side of the easement, joins Connolly Creek just before it flows across the floodway.
An accessway for vehicles has been constructed along the easement. The standard of the construction of the accessway is the subject of the discussion in the issues below.
Adjoining to the north, south and east are agricultural properties cleared for cropping and grazing. The lots are about the same size as the site and retain vegetation generally along drainage lines and in shelter belts. Immediately to the east of the site on the other side of the unmade road reserve is a reserve containing remnant vegetation. The site is currently cropped to canola by another farmer who then runs sheep on the stubble. The applicant uses the shed on the site to store machinery used for farm maintenance.
The western area of the Shire's district is characterised by properties of about the same size as the site. Many of these lots were originally on the same certificate of title as one farm. A number of lots have been separated into individual titles. As an accident of history, a significant number of these lots have frontage to an unconstructed road or are 'landlocked' without frontage to a road reserve, constructed or unconstructed.

Planning framework

The site is zoned Farming under the Shire of Brookton Town Planning Scheme No 3 (TPS 3). A single house is an 'AA' use which, according to cl 3.6.2 of TPS 3, means the Council may, at its discretion, permit the use.
Clause 5.6 of TPS 3 'Development of lots abutting unconstructed roads' states:
Notwithstanding anything else appearing in this Scheme planning approval is required for the development of land abutting an unconstructed road or a lot which does not have frontage to a constructed road. In considering an application for planning approval the Council shall either:-
(a)refuse the application until the road has been constructed or access by means of a constructed road is provided as the case may be: or
(b)grant the application subject to a condition requiring the applicant to pay a sum of money in or towards payment of the cost or estimated cost of construction of the road or part thereof and any other conditions it thinks fit to impose; or
(c)require such other arrangements are made for permanent access as shall be to the satisfaction of the Council.
Clause 8.7 of TPS 3 provides that Council may make town planning scheme policies. Policies may be adopted after public comment has been invited, but do not require reference to the Western Australian Planning Commission. Clause 8.7.3 states:
A Town Planning Scheme policy shall not bind the Council in respect of any application for development approval, but the Council shall take into account provisions of the Policy and objectives which the Policy was designed to achieve before making its decision.
Clause 7.4.1 of TPS 3 requires Council to have due regard to any planning policy adopted under cl 8.7 when considering an application for planning approval. On 19 March 2009, the Shire adopted Local Planning Policy 8.11 'Residential Development on Farming Zoned Lots/Locations without Frontage to Dedicated Constructed Public Roads' (Policy 8.11). Policy 8.11 lists as an objective:
This policy is made with the objective of ensuring that occupants of a residential development are assured of reasonably safe and secure access to all services and amenities available to the wider community. This policy supersedes all other policies relating to residential development on farming zoned lots/locations without frontage to dedicated and constructed public roads.
Policy 8.11 states that, to comply with cl 5.6(c) of TPS 3, there are the following minimum acceptable access requirements:
1.At the applicant's cost, the applicant is to upgrade the access easement to an easement in gross in which the Shire is a party, to the satisfaction of the Shire of Brookton.
2.The previously mentioned easement in gross is to contain a clause allowing the Shire to maintain the access easement, at the Shire's discretion, should the applicant fail to do so and recover any costs incurred from the applicant.
3.All access easements to be constructed to the following minimum standards:
•The easement is to be a minimum 10 metres wide;
•Pavement design is to be as per Austroads unsealed roads manual or by a suitably qualified Civil Engineer;
•A working drawing showing cross sections every 20 metres is to be submitted and approved;
•A working drawing for every culvert type proposed to be used showing a class, size and installation, is to be submitted and approved; and
•A working drawing for the junction of the easement and the road showing radius, site distances, drainage and cross section, to be submitted and approved.
Provisions of the Land Administration Act 1997(WA) (LA Act) directly relevant to this matter are:
195. Easements in gross may be made generally in favour of the State etc.
It is possible, and is deemed always to have been possible
(a)to create in favour of the State of Western Australia or in favour of a State instrumentality, statutory body corporate or local government, an easement without a dominant tenement; and
(b)to annex to or make appurtenant to an easement, another easement or the benefit of a restriction as to the user of land.
196. Creation of public access easements
(1)An easement created under section 195 may be specified to be a public access easement.
(2)A public access easement is a right of way for the use and benefit of the public at large.
(3)An interest in land cannot be taken under this Part for the purpose only of creating a public access easement.
(4)Subject to subsection (3), a public access easement is a public work for the purposes of this Part and Part 10.
(5)A public access easement may be limited in any way, including, for example
(a)limitations on use by vehicles;
(b)limitations by time, so that the right may only be exercised between particular hours, at particular times of year, or on the occurrence of particular events.
(6)A public access easement is not a public right of way for the purposes of section 68 of the Transfer of Land Act 1893.
(7)For the purposes of the Occupiers’ Liability Act 1985, the Crown is not, and a local government is not, an occupier of the land over which a public access easement is granted.
(8)Any covenants in a deed creating a public access easement are binding on successors in title to the covenantor, unless the deed provides otherwise.
(9)A public access easement in favour of the State of Western Australia may be varied or surrendered on behalf of the State by a deed made by the Minister responsible for the administration of the Planning and Development Act 2005.

Conditions of approval imposed on the proposed development

The applicant submitted an application for approval for a single house on 7 August 2009. On 17 September 2009, the respondent Council approved the construction of a single house on the site subject to six conditions. Condition 6 stated:
Prior to the issue of a building licence, Lot 7480 must be provided with frontage to a constructed and gazetted public road (see Advice Note 5).
Advice Note 5 of 17 September 2009 approval stated:
With regard to condition 6, engineering plans are to be submitted and approved by the Shire of Brookton prior to construction of the road.
In September 2009 and October 2009, the applicant wrote to the Council requesting that condition 6 be reconsidered. At its ordinary meeting of 19 November 2009, the Council reconsidered condition 6 and resolved to:
1.Vary condition 6 of the planning approval granted 17 September 2009 for a single dwelling at Lot 7480 Buckingham Road, Jelcobine to:
Condition 6
Prior to the occupation of the dwelling, Lot 7480 shall be provided with frontage to a constructed and gazetted public road; or the registered carriageway easement over Lot 506 shall be constructed to an all weather standard to the satisfaction of the Shire Principal Works Supervisor.
2.Impose an additional condition and advice note:
Condition 7
Should the applicant use the registered carriageway easement over Lot 506, the subject of condition 6, for access, an easement in gross to the benefit of the Shire for the purpose of maintaining the easement shall be placed on the title of Lot 506 at the applicant's expense, prior to occupation of the dwelling.
The applicant then filed with the Tribunal an application for review of condition 6 and condition 7 imposed by the Council in its decision of 19 November 2009.

The issues

The respondent raised the following as issues for determination by the Tribunal:
1)Whether the applicant should be permitted to develop a dwelling on land with no guaranteed access to the public road system.
2)Whether the applicant should, as a condition of development approval, be given the options of either constructing a road on the existing unused road reserve, or providing a suitable accessway on an easement with the element of easement in gross permanence.
3)Whether the applicant should be required by a condition of approval to construct the road or access to an approved all weather road standard.

Whether the applicant should be permitted to develop a dwelling on land with no guaranteed access to the public road system

The Tribunal considers, and the parties did not dispute, that it would not be consistent with orderly and proper planning to grant development approval for a house on a lot that did not have access to the public road system. People living in a house must be able to go between the house and the public road system so that they can go about their daily lives. The Tribunal is of the view that there is a nexus between the proposed development and the requirement that there be legal access to the site from the public road system.
The access between a house lot and the public road system should not be dependent upon another landowner who allows passage across their land, but who is without obligation and can deny access at any time. An example of such circumstances was referred to by the parties as the 'Mattingley' dispute. As this was described by the respondent, a landowner no longer allows movement previously allowed across private land in the gap between a public road and an easement serving at least two houses. This has effectively made the houses landlocked. The respondent said the landowners have involved the Shire in what is a dispute between private landowners, with the landowners expressing the expectation that the Shire will provide a solution.
The site has frontage to a public road reserve but does not have frontage to a constructed public road. If the unmade road were constructed, there would be no issue as the site would have guaranteed direct access to the public road system, provided the Shire, as is usual, maintained the road in a trafficable state. However, about 1 kilometre of public road would have to be constructed where there is now just bush if the site was to be connected to Buckingham Road and the rest of the public road system.
Both parties said they did not have the resources, nor did they consider it their responsibility, to construct the unmade section of road. The applicant's submission was that it would be impossible for it to pay for the full public road required and, in any event, it would be inequitable for the applicant to construct the required length of public road at its own cost. On the evidence of Mr Donald Veal, a traffic engineer called by the applicant, a standard minor rural road would have a design requirement for a capacity of between 20 and 150 vehicles per day, and a typical rural house would contribute about two to four vehicles per day. Mr Ernest Samec, who both appeared for and was a planning witness for the applicant, said the applicant should contribute only on a proportional basis based on the number of vehicle trips generated by the site relative to the vehicle carrying capacity of the public road. Mr Samec said the Shire should be responsible for the remainder of the cost.

The respondent, in its statement of issues, facts and contentions, said that it did not have funds available for construction of the unmade road to provide access to the site. Mr Peter Wright, the Shire planner called as a witness by the respondent, said that, as the construction of the public road within the road reserve would only benefit the applicant, it should be constructed by the applicant and it would be inappropriate for the Shire to contribute to the cost. The new road would pass two other properties, but each of those has frontage to a constructed public road on other boundaries. The unmade road reserve also ends as a culdesac to the south of the site. There would therefore be no benefit to be gained by the community by the construction of the unmade road, because it would not provide an additional link to the south to the district road network.
The Tribunal would comment that Mr Samec's approach to apportioning road construction costs is different from the usual approaches related to total traffic using the road and frontages access. In the event, it is not necessary to address apportioning costs, because it is common ground that construction of the unmade public road is not a means by which condition 6 of the approval is to be satisfied.
The site does, however, have access to the public road system. This is in the form of the registered carriageway easement across Lot 506 between Buckingham Road and the site. The Shire has granted approval for the farmshed on the site and the applicant drives to and from this shed using the easement.
The site at the present time has guaranteed access to the public road system because of the benefit of the right of carriageway across Lot 506. If this were the only consideration, the house could be built. The respondent has also raised as issues, however, whether the access to the public road system using the carriageway easement would be permanent, and the standard to which the accessway should be built and how this standard would be maintained. These additional issues are addressed below.

Whether the applicant should, as a condition of development approval, be given the options of either constructing a road on the existing unused road reserve, or providing a suitable accessway on an easement with the element of easement in gross permanence

The respondent said its preference was that the applicant constructs the new public road to provide access to the site. The road would be permanent, and maintaining the standard of the road, once constructed, would be directly under the control of the Shire. The Shire did concede, however, that the construction of the new road was the most expensive solution. As discussed above, the Shire does not consider it appropriate to contribute to the construction of a road that is required by only one landowner, and the applicant does not have the means to construct the required length of new public road.
The Shire said use of the carriageway easement as access to the site was only acceptable as an option if the easement was made an easement in gross with the Shire as a party, pursuant to s 195 and s 196 of the LA Act. The Shire's submission was that, if there is less than an easement in gross, there would be the problem that the Shire would not ultimately be able to control whether or not the easement was to be extinguished at some time in the future.
The respondent's submission was that, in the future, the site and Lot 506 may come under common ownership and the easement could be extinguished without the knowledge of the Shire. That one owner might think it appropriate to extinguish the easement because, for example, it considered the easement had become unnecessary or it might be easier to sell Lot 506 without the burden of the easement.
The Shire's concern is that, in the circumstances just described, the house on the site will be without frontage to a constructed public road and will be without the advantage of access via a registered carriageway easement. The respondent said that it is in such circumstances that private landowners in dispute are likely to turn to the Shire to provide a solution. The then owner of the site might press the Shire to construct the unmade public road. The Shire becomes involved in a timeconsuming, costly and litigious process.
Mr Wright cited the Mattingley matter, referred to above, as an example of the Shire being drawn into and being expected to resolve an access dispute. He also referred to an access dispute which coincidentally involved Location 17604 adjoining the site. The Council refused an application for retrospective planning approval for a house erected illegally on Location 17604, which is a landlocked lot with no frontage to a road reserve. An application for review of the refusal filed with the Tribunal was referred to mediation. Following the mediation, the Tribunal issued orders which, by consent, granted the development conditional approval. The conditions included the owner of adjoining Lot 505 granting an easement in gross in favour of the Shire pursuant to s 195 and s 196 of the LA Act as a public access easement.
The respondent said that, with the focus of local people on road access issues, 'it wouldn't be surprising if the Shire in the future was to regularly [be] drawn into disputes in regard to this access to Location 7480 if the problem isn't worked out in a permanent viable way now' (T:16, 17.08.10).
The respondent said the Council had perceived a 'present and looming' problem for the district because of lots without permanent road frontage. To deal with this, Council had adopted measures it considered 'responsible and viable' which were to include cl 5.6 of TPS 3 and adopt Policy 8.11 to guide decisionmaking under cl 5.6. The respondent said that if the community 'becomes aware that individuals in hard circumstances can get special outcomes in the face of scheme provisions and a policy which have very clear focus, then the planning system itself is undermined' (T:116, 17.08.10). To address the concerns of the owner of Lot 506 about the public having access to the easement, restrictions could be placed on the type of vehicles and the times of using the easement in gross as a public access easement, as provided for under s 196(5) of the LA Act.
The applicant said that Mr Williams of Lot 506 had commented that he would not be party to an easement in gross on his land. One concern was that it would become a public access easement. Mr Samec said that the Mattingley matter was irrelevant, because it was a dispute about vehicles being stopped from crossing private land over which there was no legal access. There had never been an easement over the land in question. Mr Samec said that, in respect of the easement in gross on the neighbouring lot, there was no evidence of why the conditions issued to resolve the matter were agreed between the parties.
Mr Samec said it was not in the interest of the applicant or any subsequent owner of the dominant tenement to extinguish the easement. Permanence would be assured simply by the interests of the landowner. In his opinion, one owner purchasing both lots and extinguishing the easement was a possibility so remote that it was not a reasonable position to hold.
The Tribunal is satisfied that the site has frontage to a constructed public road. This is because of the carriageway easement between the site and Buckingham Road. The Tribunal notes that the respondent wants to create an easement in gross for the purpose of an 'access easement' referred to in cl 3 of Policy 8.11. The LA Act refers only to 'public access easements', and this is at s 196 cited above.
The Tribunal is aware of the creation of a public access easement where there was no dominant tenement and the local government wished to ensure as part of a structure plan that access by the public is maintained across private land: Teo and City of Stirling [2008] WASAT 55 at [22]. In this matter, the respondent says it is willing to consider restricting the use of the easement pursuant to s 196(5) of the LA Act to effectively restrict the uninvited public from using the access easement.
The Tribunal notes that Policy 8.11 states, at cl 1, that 'the minimum acceptable access requirement' is an easement in gross. The Tribunal would comment that a policy is not mandatory. Clause 8.7.3 of TPS 3 provides that the Council is not bound by, but is to have regard to, the objective of a policy. Applying the provisions of Policy 8.11 without question to all developments of this type would not be orderly and proper planning and the Tribunal does not agree that failure to do so would undermine the local planning system. Mandatory is the requirement at cl 5.6(c) of TPS 3 that access be permanent. Required is consideration of the proposal to determine to what extent the provisions of Policy 8.11 should be applied to achieve the objective of cl 5.6 of TPS 3.
The Tribunal did not have evidence of a 'current and looming' problem arising from providing access to lots with no constructed public road frontage. The 'Mattingley' matter can be distinguished because of multiple landowners simply crossing private land of another to gain access to house sites. The Tribunal does not know of the circumstances that gave rise, by consent of the parties as a consequence of mediation, to an easement in gross on Lot 505 as a condition of the approval of the illegally erected house on Location 17604. Another example referred to by Mr Wright was concern about traffic generated by a proposed quarry.
An easement in gross would certainly ensure there was no change to access arrangements to a landlocked lot without the Shire's consent. The Tribunal has not been convinced the proposal is representative of a current access problem. The Tribunal notes that a condition of the offer by the applicant to purchase the site was that there be a carriageway easement across Lot 506, and this was created. This, the Tribunal considers, is what would normally occur in the purchase of an otherwise landlocked lot on which a person wished to build a house.
The Tribunal is of the view that, in circumstances such as in this case, the likelihood of the carriageway easement to the site being extinguished is remote. This brings into doubt the need for an easement in gross and therefore the need for condition 7. The Tribunal has formed the view that a registered carriageway easement with a dominant tenement is, in this instance, sufficiently permanent to satisfy cl 5.6(c) of TPS 3.

Whether the applicant should be required by a condition of approval to construct the road or access to an approved all weather road standard

There was no dispute that, if the 1 kilometre of road required to provide constructed road frontage to the site was to be constructed in the gazetted road reserve, it would be constructed to the same standard as other public roads in the locality. As discussed above, the construction of this road by either party is not going to occur to satisfy condition 6 of the development approval.
The accessway currently constructed in the carriageway easement across Lot 506 was inspected by Mr Veal. He described the accessway as traversed by five culvert pipes, with trafficable road varying between 3.5 metres and 5.7 metres. Just south of the fork leading to the house on Lot 506 is a section of about 15 metres where floodwater would run over the road.
Mr Veal said the accessway sloped generally upward to the site, with the low point near the first culvert about 150 metres from the entrance. There are a few short sections where vehicles travelling in opposite directions would not be able to pass each other and sight distance was good over most of the length. Mr Veal said the accessway appeared to him to be of sufficient standard to provide all weather access. He did acknowledge, however, that he was a traffic engineer and not a civil engineer.
Mr Nicholson said that where the water flowed over the accessway, this was only ever a few centimetres and was across a rock base. The flow was less than the water that crossed the floodway on Buckingham Road. He said he had placed two loads of gravel on the accessway and installed the culverts. Mr Nicholson said he and his visitors used the accessway in twowheel drive vehicles all year, and trucks up to 8 tonnes delivering his shed, concrete and a water tank had used the accessway to the site without difficulty.
There was evidence that near the beginning of winter in 2009, a truck delivering half of a house to be erected on Lot 506 became bogged when it swung wide off the accessway to turn eastward into Lot 506. The delivery of the house could not be completed until the land dried out in November. Examination of Mr Nicholson and Mr Geoffrey Forward, the works supervisor at the Shire who appeared as a witness, revealed that any damage to the accessway did not prevent traffic gaining access to the site.
Mr Forward said he had not conducted any tests but from his experience considered there was a subsurface wet area at the northern end of the accessway and clay would make the accessway slippery when wet. Mr Forward said the accessway should be built to the standard at cl 3 of Policy 8.11 or, at a minimum, as a 4 metre wide pavement of graded gravel constructed to as all weather road. This would be suitable for all 'rightofway vehicles'; that is, vehicles from cars up to semi-trailers that do not require a permit to travel on public roads. He said he would be satisfied with a standard lesser than the standard of the 'Austroads' unsealed roads manual if certified by a civil engineer. The standard he would be satisfied with was 'in his head', but he would want a design that included pavement widths and thicknesses, culvert sizes and water runoffs. The test was whether the accessway was to an all weather standard. Mr Forward considered the cost of $198,000 for an all weather road quoted by the applicant's consulting engineer to be excessive. He thought a 4 metre wide all weather road could be constructed for $40,000 to $50,000.
When questioned, Mr Forward said the Shire had never become involved in the maintenance of easements in gross and had no inspection regime for monitoring the maintenance of accessways in easements. Once a civil engineer had signed off on the standard, the Shire had no interest until there was a dispute about the standard of the accessway. The easement in gross would, however, allow the Shire to 'physically maintain' the accessway so that 'one owner wasn't suffering'. Mr Wright envisaged circumstances where runoff or silt from a servient tenement damaged an accessway. The Shire would be able to step in, carry out work and recover costs.
Mr Forward said the Shire's concern also included how emergency vehicles would get to a farmhouse. Under examination, however, he said that the Shire had no say in how vehicles got from a constructed road to a farmhouse, even if the distance might be 100 metres or more. He agreed that emergency vehicles were then 'at the mercy' of the landowner.
The applicant's submission was that it was in his own interest to maintain the accessway in the easement to a standard that allowed him to gain access to his house throughout the year. He considered the accessway to be constructed to a standard suitable for all weather access and had been able to gain access with a twowheeled drive vehicle all year round since buying the site in 2006.
An advice note in Policy 8.11 states:
Compliance with this policy is not required where direct road frontage is achieved through the creation of a battleaxe lot via subdivision and amalgamation or access is provided through compliance with Clauses 5.6(a) and 5.6(b) of the Shire of Brookton's Town Planning Scheme No 3.
The Tribunal notes that the Shire's concern is only that emergency vehicles be able to reach the boundary of a rural lot, not the house on the lot. In this regard, the Tribunal is not clear on the difference between a carriageway easement and a battleaxe leg providing access to the vicinity of a rural house.
The Tribunal is of the view that, where there are a number of dominant tenements or a number of servient tenements, the Shire might have a role to play in stepping in when disputes arise about maintenance of an accessway in an easement. In the circumstances of this case, there is one servient and one dominant tenement. The relationship between the two such tenements is well established. The dominant tenement can only use the easement consistent with the purpose for which it was created. The servient tenement has no obligations to maintain the easement for the purpose for which it was created, but cannot cause any interference that prevents its use for the purpose. Remedies are available at law to both parties.
The Shire is seeking a standard of construction that will be certain of providing all weather access for all 'rightofway vehicles', but this will impose on the applicant a significant burden of maintenance if the accessway is to be maintained at that standard of road construction. The Shire said it will not be maintaining the accessway, but if it considers the standard has not been maintained, it will do the work and charge who it considers is responsible for the work. The applicant has carried out some maintenance installing culverts and spreading gravel and is satisfied that the accessway is constructed to sufficient standard for his purposes. For a farm access, the Tribunal is not clear on why this owner of Lot 7480 and subsequent owners should not be allowed to maintain their own access at a level they consider sufficient for their requirements, rather than at a standard for 'rightofway' vehicles.
The Tribunal formed the view under the second issue above that, in the circumstances of this case, it was not necessary that the easement on Lot 506 become an easement in gross. The easement would not therefore become a public access easement and the Tribunal considers that it therefore follows that, for what is, in essence, a private driveway to a farmhouse, the accessway in the easement need not be constructed the complete standard at cl 3 of Policy 8.11.
The Tribunal does consider, however, that where the accessway meets the public road, the requirement of cl 3 of Policy 8.11 should be satisfied; that is, the crossover constructed with:
A working drawing for the junction of the easement and the road showing radius, site distances, drainage and cross section, to be submitted and approved.

Conclusion

The Tribunal has found that the site currently has guaranteed access to Buckingham Road a constructed public road because of the benefit of the carriageway easement across Lot 506. If this were the only consideration, the house could be built. The respondent has also raised as issues, however, whether the access to the public road system using the carriageway easement would be permanent and the standard to which the accessway should be built and maintained.
In respect of the permanence of the access to the public road system, the Shire's concern was that, if there is less than an easement in gross, the Shire would not ultimately be able to control whether or not the easement is extinguished at some time in the future. The site and Lot 506 may come under one owner and, without an easement in gross, the easement could be extinguished without the knowledge of the Shire.
The Tribunal did not have evidence of a 'current and looming' problem as asserted by the respondent arising from difficulties with providing access to lots with no constructed public road frontage. The Tribunal considers it is likely, as occurred with the applicant's purchase of the site, that future purchasers would require as a condition of the offer that there be a carriageway easement across Lot 506.
The Tribunal has formed the view that, in circumstances such as in this case, the likelihood of the carriageway easement to the site being extinguished is remote. The Tribunal has formed the view that a registered carriageway easement with a dominant tenement is, in this instance, sufficiently permanent to satisfy cl 5.6(c) of TPS 3.

In respect of the standard of construction of the accessway, the Shire is seeking all weather access for all 'rightofway vehicles'. This, however, will impose on the applicant a significant burden if the accessway is to be maintained at that standard of road construction. The Shire said it will not be maintaining the accessway, but if it considers the standard has not been maintained, it will do the work and charge who it considers should have been responsible for the work.
The applicant has carried out some work on the accessway and is satisfied that it is constructed to a sufficient standard for his purposes.
The Tribunal, having formed the view that it was not necessary that the easement on Lot 506 become an easement in gross, considers it follows that, for what is, in essence, a private driveway to a farmhouse, the accessway in the easement needs to be constructed to a standard that satisfies the landowner and need not be constructed to the complete standard for a public access easement at cl 3 of Policy 8.11.
The Tribunal has decided to uphold in part the application for review. Condition 6 is to be varied to require, as an alternative to frontage to a constructed public road, that the registered easement over Lot 506 remain in place to provide easement benefit for right of carriageway purposes for access to the site. Condition 7 is to be replaced with a condition requiring that the applicant construct the crossover between the easement and Buckingham Road to the Shire's standard.

Orders

1.The application for review is allowed in part.
2.Condition 6 as issued by the Council on 19 November 2009 is varied to read:
Prior to the occupation of the dwelling, Lot 7480 shall be provided with frontage to a constructed and gazetted public road; or the registered easement over Lot 506 shall remain in place to provide easement benefit for right of carriageway purposes for access to Lot 7480.
3.Condition 7 is deleted and replaced with a new condition 7 to read:
The crossover between the easement and Buckingham Road is to be constructed with a working drawing showing radius, site distances, drainage and cross-section, to the satisfaction of the Shire.

I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER