Nirimba Developments Pty Limited v Blacktown City Council

[2008] NSWLEC 1229

Land and Environment Court

of New South Wales

CITATION:	Nirimba Developments Pty Limited v Blacktown City Council & Anor [2008] NSWLEC 1229
PARTIES:	APPLICANT Nirimba Developments Pty Limited FIRST RESPONDENT SECOND RESPONDENT Blacktown City Council Sertari Pty Limited
FILE NUMBER(S):	10989 of 2006
CORAM:	Murrell C
KEY ISSUES:	Development Application - Development Consent :- Use of Right of Carriageway by applicant, safety and access during construction, pedestrian safety, vehicular traffic carried by row, owners consent for use (second respondent), impact on parking and access for owner of row
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSW SC252 Sertari v Nirimba Developments Pty Limited [2007] NSWCA324 Nirimba Developments v Blacktown CC & Anor [2006] NSWLEC 739
DATES OF HEARING:	23/05/2007, 24/05/2007, 19/12/2007, 7/3/2008
DATE OF JUDGMENT:	30 July 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P. Rigg, solicitor of Deacons Lawyers FIRST RESPONDENT Mr Marcinowitz of DLA Phillips Fox Lawyers SECOND RESPONDENT Mr T. Hale (SC), barrister Instructed by David Brigden & Kim Glassborow of Holding Redlich

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 July 2008

10989 of 2006 Nirimba Developments Pty Limited
v

1st Respondent Blacktown City Council, and
2nd Respondent Sertari Pty Ltd

JUDGMENT

1 These proceedings are about the use of a right of carriageway by the applicant Nirimba Developments Pty Ltd. The second respondent in these proceedings, Sertari Pty Limited, owns the right of carriageway and the applicant has the benefit of this right of carriageway.

2 The second respondent’s land burdened by the right of carriageway is within Lot 1 in DP 806691 and is known as No.7 Nirimba Drive, Quakers Hill, being the site of the Quakers Hill Tavern. This hotel was approved in 1989 and at that time a right of carriageway was provided in favour of the subject site at the rear, then owned by Telecom.

Background

3 Earlier proceedings in this Court concerned an appeal by the applicant against a refusal by Blacktown City Council for a residential flat development containing 236 dwellings in two x five level residential flat buildings above two levels of basement parking on land known as No. 9 Nirimba Drive, Quakers Hill. Following amendments to the proposed residential flat building the Council agreed that a deferred conditional development consent could be granted and this included a condition to the effect that any works associated with the proposed development cannot commence until such time as a consent has been granted for the application for the use of the right of the carriageway. Accordingly, this Court granted consent, subject to conditions, 25 October 2006.

4 In 1989 when the Council approved the Quakers Hill Tavern it was noted in the Planner’s Report that:

(i) Council permit carparking as shown on both proposals over the proposed road;
(ii) Council advise the applicant that they do not require the dedication of the proposed road and requires the provision of a right of way across the subject lot in favour of Telecom; and
(iii) Council amend the comprehensive Development Control Plan Map accordingly .

5 In the same report there were a number of recommendations including:

(c) the creation of a restriction as to user over the development site to provide for uninterrupted public pedestrian and vehicular access to the western portion of this precinct of Quakers Hill Business Area, including the construction of appropriate bridging across the drainage channel to the satisfaction of, and at no cost to, Council.

6 In the notice of determination of 18 August 1989 a number of conditions were attached including:

• Access across the site including DP 216298 is to be provided.
• An appropriate restriction as to user is to be created under s 88B of the Conveyancing Act to ensure this requirement. This section 88B instrument shall contain a provision that it not be extinguished or altered except with the prior consent of Council....

7 In March 1992 a planning study and working paper was produced by consultants wherein it is noted that:

“the Commonwealth government had decided to transfer naval activities currently conducted at HMAS NIRIMBA to other naval establishments and has decided that the NIRIMBA site together with Schofields Aerodrome will become surplus to government requirements and may be sold and developed for alternative uses”.

8 In 2000, Council resolved to prepare a Local Environmental Plan to permit a rezoning of the Commonwealth land to allow a SEPP 5 development. In December 2001 a request to rezone the site to Residential C to facilitate the construction of a medium high density multi-unit housing development on the site. The rezoning to Residential C was gazetted in 2003.

9 In July 2006 a memo was prepared by Blacktown City Council senior transport management officer in response to a request for comments on the residential flat development at 9 Nirimba Drive. The memo states:

… .
It is Council’s understanding that the function of Nirimba Drive will change, in medium to long term future, from local access road to a collector road.

Accordingly a decision needs to be made as to whether it is appropriate to consider the impact of this development in terms of the strategic planning for the future role of Nirimba Drive or alternatively if the development’s impact should be considered in isolation.

The traffic report is narrowly focussed on the current status of the road which is a Right of way and assessed only its suitability for access provisions for the proposed development. It is our view that in terms of capacity of the road to handle additional traffic, the existing seven metre wide carriageway can accommodate additional traffic generated by the proposed development. However, safety concerns are raised on the ninety degree angle parking on both sides of the right of way in front of Quakers Inn Hotel should the right of carriageway become a public road in the future.... Ninety degree angle parking is something the Quakers Inn Hotel needs reviewing once the right of way portion of Nirimba Drive (fronting the Quakers Inn Hotel), becomes a public road. Kerbside parallel parking on both sides or one side of Nirimba Drive could be the options for consideration at that time. Should either of the options be adopted, there would be an impact in the loss of existing parking available for Quakers Inn Hotel. This issue would need to be examined and addressed as the Hotel’s operations currently relies on these angle parking spaces.
A temporary footway has been established in the rail corridor on the eastern side of the right of carriageway. This temporary arrangement with Railcorp was most likely established during the original construction of the Quakers Hill parkway overbridge, when a pedestrian connection from the bridge to Nirimba Drive was established. Enquiries with Property section indicated that details concerning the duration of the lease with Railcorp is not clear, and this matter will be pursued with the rail authorities. This matter will need to be clarified as there is rail duplication proposal between Quakers Hill and Schofields as part of the North-west Structure Plan over the next four years and the land within the rail corridor currently utilised for the footway will need to be secured...
Whilst traffic numbers are not high, as a result of this development this arrangement involves crossing Nirimba Drive twice which itself could be a safety hazard. However, this scenario is unlikely to take place and pedestrians will tend to walk the shortest route through the carpark to connect to footways on the western side of Nirimba Drive.
A continuous footway provision on the western side of Nirimba Drive would cater for the increased demand of pedestrians and potential cyclists. In this regard it may be appropriate to consider realigning the angle parking into the rail corridor to create sufficient space for the footway on the western side of Nirimba Drive.”

10 In these proceedings about the right of carriageway the Second Respondent raises the following issues:

Legal Issues
1. Whether the development application can be determined in the absence of the consent by the landowner to the lodging of the development application.
2. Whether the development application can be determined where it was not accompanied by a Statement of Environmental Effects meeting the requirements of clause 50(1)(a) of the Environmental Planning and Assessment Regulation 2000.
3. Whether the application should be entertained where it would be futile for the Court to embark on an environmental and planning assessment in circumstances where the landowner’s consent had not been given.
4. Whether development consent can be granted to the application given the lack of precision of the description in this application of the proposed development.
Merit Issues
5. Whether the use of the right of way by vehicular and pedestrian traffic likely to be generated by the proposed development, particularly when coupled with the use of the parking area of the Quakers Hill Inn by its patrons and suppliers, will give rise to an unacceptable level or risk to the safety of those who use the car park.
6. Whether the likely increased traffic flow traversing the right of way arising from the proposed development will unacceptably impact upon the operations of the Quakers Hill Inn.
7. Whether construction traffic involved in the development of Nirimba’ site will have unacceptable impacts upon the operations of the Quakers Hill Inn.
8. Whether vehicular traffic (including construction traffic) will have an unacceptable impact on the pavement of the car park within the boundary of the right of carriageway.
9. Whether Nirimba and its successors in title should be responsible for the on-going maintenance of the right of way and for injuries and other damages which may be occasioned within the right of way as a result of its use by people accessing Nirimba’s site.
10. Whether it is appropriate that the right of way be allowed to be used in circumstances where it will be, or will be seen by the public as, performing the functions of a public road, it not having been constructed to the standards and specifications of a public road.

11 At the beginning of the proceedings before me the second respondent, Sertari, had not provided owner’s consent for the development application to use the right of carriageway. The applicant, Nirimba, appealed to the Supreme Court and on 22 March 2007 in the matter of Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSW SC252 his Honour stated that an order should be made requiring the giving of consent by the Defendants.

12 The Supreme Court’s decision was appealed in the Court of Appeal and judgment in the matter of Sertari Pty Limited v Nirimba Developments Pty Limited [2007] NSWCA324 held that the appeal be dismissed with costs. The following is an extract from this judgment:

3 HANDLEY AJA : This appeal from a decision by Windeyer J raises questions about a right of carriageway over Torrens Title land at Quakers Hill owned by the Appellant. The order appealed against required it to consent in writing to an application for development consent in respect of the servient tenement. The easement was created pursuant to section 88B of the Conveyancing Act 1919 to satisfy a condition in a development consent granted on 18 August 1989 by the Council of the City of Blacktown (the Council) for the construction of a tavern on land which included the servient tenement. The Quakers Inn Hotel was later erected on that land.

4 In 1989 the dominant tenement comprising some 557 acres, which had been the site of Schofield Airport, was owned by the Commonwealth. The right of carriageway gave access from Railway Road, which was 66 feet or 20.10 meters wide, to the dominant tenement. A subdivision of the dominant tenement DP853847 created Lot 1 of about two hectares now owned by the respondent, and Narimba Drive.

5 The respondent's land has a frontage to Narimba Drive, also 20.10 meters wide, which is linked to the servient tenement and thus Railway Road but it is otherwise landlocked. Hitherto the use made of the right of carriageway has been moderate because the adjacent areas of the dominant tenement remain undeveloped.

7 The servient tenement runs through the middle of a car park of the Quakers Inn Hotel which is adjacent to its bottle shop. The likely use of the right of carriageway during the construction phase of the residential development on the respondent's land and then by the occupiers of the units and others will constitute development of the servient tenement because of the intensification of its use. The respondent therefore needed development consent for the servient tenement.

9 The owner of a dominant tenement is entitled to construct improvements on the servient tenement where this is necessary or convenient for the exercise of the rights conferred by the easement. In Kirkjian v Towers (6/7/87 u/r) Waddell CJ in Eq held that the owner of the servient tenement could be ordered to consent to the lodgement of a development application for construction of improvements which are reasonably necessary for the proper enjoyment of the easement.

10 The servient owner's refusal of consent, where this is legally necessary, obstructs the dominant owner in the exercise of rights under the easement. Obstruction by legal means in this way is just as much an infringement of the dominant owner's rights as a direct physical obstruction. The appellant did not challenge the decisions referred to.

13 Windeyer J held that the words of the grant were clear and since it was a right for all purposes and at all times all persons connected with the proposed residential development were entitled to use the right of carriageway. In these circumstances the question of excessive user, which was essentially one of construction, could not arise.

14 The appellant relied on evidence of extrinsic circumstances, including the physical characteristics of the servient and dominant tenements, and the activities being conducted on the dominant tenement at the time of the grant, to support a narrower construction. In particular it relied on the genesis and purpose of the grant evidenced in the report to the Council of its chief town planner of 4 July 1989 which it acted upon when granting the development consent of 18 August that year.

15 Windeyer J rejected the town planner's report and the terms of the development consent as irrelevant to the construction of the grant. He also held that the physical characteristics of the tenements and the activities being conducted on the dominant tenement at the time of the grant could not cut down its plain words. The appellant again sought to rely on this extrinsic material but the decision in Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45 has since confirmed that extrinsic material apart from the physical characteristics of the tenements, is not relevant to the construction of instruments registered under the Real Property Act 1900 : paras [5], [37] - [41].

16 This Court is therefore limited to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the tenements. These provide no basis for reading down the clear and unqualified words of the grant. The grant was for all purposes, for use at all times, and extended to every person with an estate or interest in any part of the dominant tenement with which the right was capable of enjoyment, and persons authorised by them.

20 I have already held that the proposed user would not be excessive. The apparently unfair financial burden that the increased use would place on the servient owner would be lawful and in these circumstances the appellant was bound to give its formal consent to the second development application.

21 The Council has the power to release vary or modify the terms of the grant, and the appellant could have sought a variation or modification which would impose an obligation on the respondent to meet the cost of repairing and upgrading the road on the servient tenement in whole or in part. There was no suggestion that it had taken this course but Commissioner Bly, in granting development consent for the residential buildings, imposed conditions requiring the respondent to make a sizeable contribution to the repair and upkeep of the servient tenement. He dealt with this matter in para [32] of his reasons of 25 October 2006 (2/338) where he said:

"Notwithstanding that the terms of the easement require the second respondent to maintain the right of carriageway it is not unreasonable in the circumstances of this case that the applicant be responsible for the repair of any damage caused in the short term and, in the longer term for the making of a significant and continuing contribution towards its maintenance."


22 The formal consent, which would include the final form of the conditions proposed, was not before this Court but there was nothing to suggest that the conditions did not fairly adjust the financial burdens created by the increased use of the servient tenement. There is no reason to suppose that the Council would be prepared to vary or modify the right of way to impose a greater burden on the respondent. However it may be appropriate, at some stage, for the Council to modify the registered easement by incorporating the relevant conditions of consent so that these appear on the title.

23 The management of vehicle and pedestrian traffic over the servient tenement and in the car park may well create problems, including problems of public safety, especially at peak times, but these are matters for the planning authorities. They do not affect the construction of the grant, or the question of excessive user. While the servient owner, and persons authorised by it, are also entitled to use the servient tenement, the evidence does not establish that the increased use by the dominant owner would unreasonably interfere with the reasonable use of the servient tenement by the servient owner.

13 Accordingly Sertari provided owner’s consent, 21 November 2007 and there is no impediment to the development application for the use of the right of carriageway now being determined on its merits.

14 The following sets out the terms of the s88 B Instrument that applies to the 7 metre wide right of carriageway the subject of this appeal.

(a) Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment and every person authorised by him and lessees of any business conducted from the improvements erected or to be erected on the dominant tenement to go, pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both to and from the said dominant tenement or any part thereof.
(b) The site of the servient tenement shall be maintained and repaired by the registered proprietor thereof, which obligation shall bind his successors in title and assigns.

Evidence and Findings

15 The first morning of the proceedings I met on site with the parties and during the hearing I also had the benefit of hearing from a number of experts together with their statements of evidence. The traffic experts were directed to confer on the question of the traffic and pedestrian impacts of the proposal on the right of way. A joint statement was submitted by Mr Craig Hazell, and Mr Craig McLaren for the second respondent and Mr Michael Logan on behalf of the applicant..

16 The experts agreed on the existing and potential traffic and pedestrian flows. Sketches were provided to show the desired pedestrian route in accordance with Mr Hazell and Mr McLaren and the route of Mr Logan where the road is crossed twice as identified in the traffic report. These routes are shown in the attached figure.

17 Mr Logan considers that the use of the existing path way adjoining the railway land to be safe and a reasonably convenient pedestrian route whereas as Mr Hazell and Mr McLaren said that the only appropriate means for safe pedestrian management is by a path-way immediately adjoining the tavern building.

18 In Mr Hazell's statement he comments:´

in my experience I have not encountered a right of carriageway that is used to provide a missing link in a public road … that at the time of creation of the ROC it was not envisaged that there would be a future residential development of 236 units… the peak hour traffic generated by this development may be higher than the seventy vehicle trips estimated (by Mr Coady). However the traffic generation of this proposal can be adequately catered for by the 7 m wide roadways that exists even if the generation is higher than estimated. Consequently the addition of 70 or slightly higher vehicle trips in the peak hours will not exceed the capacity of this roadway in isolation. However the application does not estimate or evaluate the effect of the cumulative impact of forecast flows of the potential 2000 additional dwellings...nor does it adequately deal with the impact of the traffic on existing and future pedestrians using the right of carriageway…. the ROC has been constructed as a car park and not as a road and is unsuitable to carry the anticipated traffic flows to the construction vehicles estimated for this site.
In my opinion pedestrians generated by the proposed residential development will not use a footpath on the opposite side of the road as they will take the shortest route between the unit development and the Quakers hill shopping centre and railway station irrespective of potential road danger. Further this pedestrian path does not assist in reducing the conflict between existing pedestrians generated by the cabin and the additional vehicle traffic generated by the residential proposal…. further it is my opinion that efficient pedestrian facilities are available in the ROC to cater for the future pedestrian traffic generated by the proposed to 36 residential unit development

19 Mr McLaren in his statement of evidence comments as follows

The pedestrian vehicular conflict activity identified requires corrective action - the only reasonable action in the circumstances is to provide a footpath along the western side of the ROC as there is no way of physically preventing pedestrians walking along the ROC without the Western footpath. Any effective physical device directing pedestrians to the eastern part would be a fence, which would prevent pedestrian use of the ROC. Such a fence would by necessity also deny vehicle access to the Nirimba Drive land parcels to the north of the Quakers Hill Parkway.

20 Mr Logan refers to the report prepared by Mr Coady wherein he comments as follows

Mr McLaren and Mr Hazell considered that a pedestrian footpath is necessary across the Quakers in tavern site on the western side of the RoW. while I consider that desirable I do not consider it to be necessary.
It seems that the concern expressed in respect of pedestrian vehicle conflict can only be justified if the assumption that pedestrians won't use an upgraded footpath on railway land on the eastern side of the Ro W. but will choose instead to walk along the RoW. in direct conflict with vehicular traffic. I do not believe that in general pedestrians would prefer to endure dangerous conflict with moving vehicles along the 35 m long Ro W. rather than the relatively minor inconvenience of crossing the Nirimba drive at one or two locations to walk along a footpath segregated from vehicular traffic.
If pedestrians do choose to use an upgraded footpath on railway land on the eastern side of the right of way the only pedestrian vehicle conflict involved is crossing Nirimba drive to the north of the Quakers in tavern site and to the south of the Quakers in tavern site for those pedestrians with an origin /destination on the western side of the drive… in my opinion if the footpath on the railway land on the eastern side of the Ro W. is satisfactorily upgraded, and if pedestrian facilities are installed to facilitate pedestrians crossing the Nirimba Drive then pedestrians would utilise the designated pedestrian route rather than ‘run the gauntlet’ with vehicular traffic using the RoW.

21 While a pedestrian crossing is not triggered under the Australian Standard it was agreed by the traffic engineers, that as a discretionary matter the Council could approve a pedestrian crossing and indeed it is included as a condition of consent for the residential flat building approved on the adjoining site. (see Condition 178C).

“the applicant shall provide a zebra crossing across Nirimba Drive in accordance with the Traffic Management Plan approved under these conditions These works shall be completed prior to any Occupation Certificate for the development.”

22 Mr Hazell and Mr McLaren said that the desire line for a pedestrian is to go the shortest path that is through the Second Respondents’ property on the western side of the right of carriageway.

23 Mr Logan on the other hand is of the opinion that some pedestrians would cross the road, although it would be difficult to quantify what percentage and this will depend on the mix of people that live in the units. The figure attached from the applicant’s traffic engineer shows the two pedestrian routes. That is, the one adjacent to the east on rail leased land and the one through the second respondent's property adjoining the western side of the right carriageway. Mr Logan recommends that the lease be renewed to provide a pedestrian path.

24 Mr Rigg submitted that because of the position of the pylon that was pointed out to the Court on the morning of the inspection, the prolongation of that allowed still a metre of land west of the existing pathway to be constructed.

25 A pedestrian refuge to Council specifications was suggested at the western and eastern end of the right of carriageway and Mr Hazell and Mr McLaren also consider:

• a fully mountable roundabout on the eastern end;
• the removal of a number of carparking spaces, and
• a raised pedestrian path is the only appropriate means for safe pedestrian management.

26 During the hearing the Court inquired about the future of the pedestrian path way currently leased by the Council from RailCorp. Advice was subsequently received from RailCorp in August 2007, including an aerial photograph that also shows the Quakers Hill Inn and the subject site. The advice states:

(the proposal) is to construct a new track on the eastern side of the existing track (the other side of the track from this development). However, other work includes relocation of of two electrical supply poles from the eastern side to the western side stop this work is expected to occur within the boundary of rail corridor and therefore does not appear to be an issue for this development.

… the main issue appears to be access for RailCorp's engineering and maintenance personnel will stop khaki access is predominantly along the eastern side with the new track will be built. I whether teacher personnel will need to use the western side access via the rim of the drive for access onto the rail corridor with plans, trucks and machinery.

The duplication of the Richmond line will support the capability to run additional train services between vineyard and Blacktown. The increase in services is expected to generate additional patronage and demand for rail services, some of which might require the use of the right of carriageway and the pedestrian walk way to access the station. It is possible that the occupants of the development will also access the station using the right of carriageway and pedestrian walkway.

27 On the basis of the evidence to the Court I am satisfied that the pedestrian access, subject to appropriate conditions of consent, would be satisfactory.

28 A deferred commencement condition is required for a pedestrian management plan to detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north-west of Lot 1 and it shall also make provision for safe pedestrian access from Railway Avenue to the Quakers Hill Inn.

29 The experts considered that it would be appropriate to have a maximum speed zone during the construction period, and whether this be 10, 20 or 25 kilometres would be dependant upon whether vehicles could access parking during the construction phase. On this issue the parties agreed on a deferred commencement condition that required a Traffic Control Plan for the right of carriageway to provide for the employment of at least three accredited RTA traffic monitors to control the movement of construction vehicles approaching the Quakers Hill Inn to protect pedestrians in the vicinity. The plan must ensure maintenance of safe, practical and reasonable access to and from all parking spaces, and to and from the loading dock of the Quakers Hill Inn.

30 On this issue that the use of the right of way for both vehicular and pedestrian traffic generated will give rise to an unacceptable level of risk to the safety of those who use the carpark having regard to the patrons and suppliers of the Quakers Hill Inn, I am satisfied on the evidence to the Court that the conflicts can be managed and will not lead to unacceptable levels of risk. This, however will require a management plan to be approved by the Council.

31 On behalf of the Second Respondent evidence was also provided by Mr David Lambert, a Quantity Surveyor and he estimated the traffic flow during construction to be in the order of 42,000 vehicle movements over a 100 week period and the cost of a new road pavement to be about $124,000.

32 The role of the court in the determination of this application is to assess the merits of the use of the right of way in terms of providing access to the approved residential flat buildings. In my assessment I must have regard to the intensification of the use of the right of way. I have the benefit of the Court of Appeal and Supreme Court judgements as to the terms of the easement in favour of the applicant and burdens the second respondent's land. The terms of the section 88 instrument cannot be artificially restricted by the previous use of the adjoining land by the dominant tenement. Clearly there is “full and free rights to pass along and repass at all times and for all purposes”. It is not a relevant matter for my consideration as to other uses that are proposed for the remainder of the surplus government lands and the focus of my assessment must be the merits and suitability of the easement to serve the proposed development of two approved residential flat buildings.

33 The issue of pedestrian and vehicle conflicts and the path that pedestrians would use was also a matter of consideration in the previous appeal for the residential flat buildings. On the basis of the evidence before me I have also concluded that while the use of the RoC will be intensified both during construction and post-construction the issues raised can be managed in a satisfactory way to minimise conflicts.

34 With the benefit of the evidence of Mr Collins, with expertise in occupational health and safety and appearing for the second respondent, I am satisfied that measures can be put in place through a construction management plan. In response to a question by Mr Hale: What would you see as people from your area of expertise recommending as the practical means of eliminating the risk? Mr Collins said

Risk elimination particularly in regards to health and safety involves hierarchy of hazard control starting with elimination. Now where that is not practical you work your way down the hierarchy will stop last on the list is administrative controls which would include signposting and pedestrians crossing… Before you get to that you would have to look at engineering controls which were barriers, fences and that kind of thing. Or separating pedestrians from the hazard which is vehicles.

35 On the question of fencing off the area for construction Mr Collins said that was not the only way. “I would say it’s the most practical way of doing it and also the way that’s going to eliminate the majority of the risk”.

36 On cross-examination Mr Collins was made aware of a number of conditions in the consent for the residential flat buildings, for example the control of dust during construction, that he said would eliminate 80 to 90%-(conditions 124, up 146 at 202).

37 For the issue of the construction traffic I have concluded that whilst there will be impacts, the impacts are manageable and will not be unacceptable on the operations of the Quakers Hill Inn. The evidence of the experts clearly recognises that a construction management plan needs to be in place in order to minimise adverse impacts. In my assessment this situation does not differ from development that adjoins public roads where, at times, inconvenience is created and I am satisfied that these impacts can be managed to an acceptable level. The issue is not whether there are impacts and a disturbance, but whether the use is unreasonable, in terms of the restriction as to user.

38 As for many large projects a construction management plan and a traffic management plan must be prepared in accordance with best practice to ensure the continued operations of the Quakers Hill Tavern without unreasonable impact and consistent with the terms of the 88B instrument.

39 It is recognised that the construction of the development may create inconvenience to the patrons and the suppliers of the Inn and people using the car park, however, in my assessment the inconvenience given the terms of the right of way is not unreasonable and the rights of the servient owner are not interfered with unreasonably in the circumstances.

40 Based on the expert evidence to the Court I am also satisfied the seven metre wide carriageway provides the necessary access for two-way traffic post development and on a merits assessment the impact on the operations of the Inn is not unreasonable.

41 The Council officers’ report cited above states that further developments of the surplus Commonwealth land may require alternative improved access arrangements, but the development known as 9 Nirimba Drive does not call up such a requirement. As to future development of the undeveloped land to the south, and the implications for the use on the subject carriage way, this is not a matter for me in these proceedings but is a matter for the council and future decision makers. I note the council officers’ comment about concerns of the 90 degree parking should the right of carriage way become a public road in the future.

42 On the issue of the impact on the pavement of the carpark within the boundary of the right of carriageway, and whether traffic during and post construction will have an unacceptable impact. The applicant has offered to maintain the right of carriageway at the full cost to the applicant, during and post construction. Similarly, this also overcomes Issue 9 about the responsibility for ongoing maintenance of the right of way.

43 On the question of whether the use of the right of way can be allowed to be used as performing the functions of a public road, when it is not constructed to the same standards and specifications. I accept the evidence of the experts that the traffic generated by the proposed development can be accommodated by the right of carriageway. As such it will not be performing the function of a public road but rather the function of access to the residential development.

44 In my overall assessment I have the benefit of not only the experts to these proceedings but also the senior council's officers reports. While I have not been persuaded by the evidence of the second respondent that any of the issues raised would warrant refusal of the development application, however these proceedings, have allowed a number of matters to be ventilated and discussed between the parties which has resulted in the concerns of the second respondent being considered in greater depth, including the maintenance costs of the easement and requiring a deferred commencement such that a plan of management must be prepared prior to the consent operating.

45 The applicant and the second respondent discussed the conditions and they are now agreed between the parties. The second respondent initially proposed conditions that were tantamount to a refusal or outside the realms of the application. The agreed conditions attached include that the applicant pay for the costs of not only making good the right of way during and following construction but ongoing maintenance in terms of its use for the proposed residential flat buildings.

46 I am satisfied that on a merits assessment of the development application for the use of the right of carriageway that benefits No. 9 Nirimba Drive, that there are no outstanding issues that would warrant refusal of the application, subject to appropriate conditions.

47 Accordingly on the basis of my assessment above, the formal orders of the Court are:

1. The appeal, in respect of the right of carriageway burdening Lot 1 DP 806691 that benefits the property known as No. 9 Nirimba Drive, Quakers Hill, is upheld.
2. The development application submitted to Blacktown City Council for use of the above right of carriageway is determined by the granting of consent subject to a deferred commencement and other conditions as contained in Annexure ‘A’.
3. The exhibits are returned to the parties except Exhibits A, C, J, 12 and 13.

___________________
J. S. Murrell
Commissioner of the Court
Kb/ljr