Paul Lemottee Project Management Pty Ltd v Port Stephens Council

[2009] NSWLEC 1176

Land and Environment Court

of New South Wales

CITATION:

Paul Lemottee Project Management Pty Ltd v Port Stephens Council [2009] NSWLEC 1176

PARTIES:

APPLICANT
Paul Lemottee Project Management Pty Ltd

RESPONDENT
Port Stephens Council

FILE NUMBER(S):

10300 of 2008

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Residential subdivision, interim access road, drainage, orderly development.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hunter Region Environmental Plan
Port Stephens Local Environmental Plan 2000

DATES OF HEARING:

13, 14 and 15 May 2009

 
DATE OF JUDGMENT: 

5 June 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Mallik (Solicitor)
SOLICITOR
Mallik Rees Lawyers

RESPONDENT
Mr M Fraser (Barrister)
SOLICITOR
Harris Wheeler Lawyer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

5 June 2009

10300 of 2008 Paul Lemottee Project Management Pty Ltd v Port Stephens Council

JUDGMENT

Background

1 This appeal was lodged against council’s refusal of a development application for a 6 lot Torrens title subdivision at 103A Richardson Road, Raymond Terrace. The proposed access to the subdivision is via an existing right-of-way (ROW) from Richardson Road.

2 The following issues were identified for the appeal:

• Suitability of the proposed access.
• Acceptability of the proposed drainage system in terms of its consistency with council’s drainage study and the proposed drainage works.
• Servicing arrangements.
• Whether the development represents orderly development of the land.

3 This subdivision is a subsequent stage of the original allotment fronting Richardson Road. Back in 1987 a DCP was adopted, which provided for the subdivision of this land and adjoining land basically 2 stages. The 1st stage allowed the excision of the frontage lot and the creation of a new rear lot, subject to the creation/dedication of an intermediate 20m wide strip of land for the future extension and construction of Halloran Way. “Temporary” access to the rear lot was allowed via various ROW over the frontage properties. The 2nd stage appears to have envisaged the further subdivision of either, or both of the 1st stage lots, at which time the property owners would co-operatively construct the main access road – Halloran Way and connect it to Lake View Crescent, thereby extinguishing the multiple ROWs.

The site

4 This site is described as Lot 1 in DP 735177. It is rectangular in shape, having dimensions of approximately 117m by 58m and a total area of 6844sq m.

5 This lot was created as a 1st stage development of the original lot fronting Richardson Road. As such, it does not have direct road frontage and relies on access via a gravel driveway along a ROW, which is a council public reserve (lane).

6 The site has a gentle fall from east to west. There is an existing dwelling on the land. To the west of the site is a Place of Public Worship (church).

7 The site is situated on the edge of Raymond Terrace township. It is surrounded by other generally low-density residential properties. Although, in the immediate vicinity there are a number of larger rural-residential type lots. Vacant land zoned 7(c) – Environmental Protection (Water Protection) Zone adjoins the land to the north.

The proposal

8 The proposed new 6-lot layout is shown on Figure 1. All lots depend on access being allowed from Richardson Road via the council ROW to the unmade section of Halloran Way. From this, it is proposed to construct part (approximately 9m wide) of a new road along the common boundary with the church. A section of new subdivision road is to be constructed adjacent to lots 1, 2 and 3, in general conformity with the DCP.

9 The proposed lots are:

• Lot 1; the northern most lot with an area of 2167sq m and it retains the existing dwelling on the current lot. It gains access from the new part road and ROW.
• Lots 2 and 3 with respective areas of 610 and 650sq m and similar access arrangements to Lot 1.
• Lots 4 and 5 with respective areas of 830 and 610sq m.
• Lot 6 with an area of 605sq m and direct frontage the future Halloran Way.

10 Because of the topography of the land falling towards the Halloran Road reserve, it is proposed to construct a stormwater detention system under the new part-road construction adjacent to the church property, to ensure post development discharge does not exceed pre-development discharges.

11 The following controls are relevant:

• Hunter Region Environmental Plan.
• Port Stephens Local Environmental Plan 2000; under which the land is zoned 2(a) Residential “A” and the subdivision is permissible with consent. The Residential A zone objectives are
  i. to encourage a range of residential development providing for a variety of housing types and designs, densities and associated land uses, with adequate levels of privacy, solar access, open space,, visual amenity and services and
  ii. to ensure that infill development has regard to the character of the area in which it is proposed and does not have an unacceptable effect on adjoining land by way of shading, invasion of privacy, noise and the like, and
  iii. to provide for non-residential uses that are compatible with the area and service local residents, and
  iv. to facilitate an ecologically sustainable approach to residential development by minimising fossil fuel use, protecting environmental assets and providing for a more efficient use of infrastructure and services, and
  v. to ensure that the design of residential areas takes into account environmental constraints including soil erosion, flooding and bushfire risk.
• Development Control Plan LD7 – Development Guidelines – Richardson Road, Raymond Terrace Residential Subdivision.
• Development Control Plan PS3 - Subdivision Guidelines.

12 Detailed evidence was presented by:

• Mr A Randall; Executive planner with council,
• Mr G Warne; Consulting planner for the applicant,
• Mr S Holle; Consulting engineer for council,
• Mr B Clarke; Consulting engineer for the applicant.
• A number nearby residents also presented their concerns about the subject development and other matters concerning the future road and drainage program.

13 In essence, this application proposes a basic 6 lot residential subdivision, whose layout is agreed to be acceptable by the parties. However the threshold question for the Court concerns whether the proposed means of access to this subdivision is also acceptable. Following this, other issues arise concerning the adequacy of serving arrangements, particularly the drainage.

Historical details of subdivision controls

14 A considerable amount of evidence was presented in response to these fundamental questions. From the documents tendered, a convenient starting point is the original Richardson Road North – DCP 10 that became effective in February 1987.This DCP applied to an area shown in Attachment 1. This DCP contained a number of objectives including:

(a) To provide for the co-ordinated subdivision of this land into allotments of approximately 4000 sq m in the area, so as not to jeopardise the future residential development potential of this area;
i. To provide for the future subdivision of this land for residential purposes;
ii. To provide for a clear hierarchy for the location of roads so that the positioning of buildings will not unnecessarily constrain the location of future roadways;
iii. To encourage the orderly and planned development of the residential land to ensure the proper integration with surrounding urban areas, particularly in respect to the location of road intersections, passive and active open space areas and community facilities.

15 The DCP provided for the subject land to be subdivided into 2 stages. Stage 1 generally allowing a 2 lot subdivision by the excision of the Richardson Road frontage lot and creation of a separate rear rural/residential (4000sq m) lot separated by the future Halloran Way road reserve. This reserve was to be created as a separate lot and dedicated as ‘road reserve’ New roads or pathways were not required to be constructed in stage 1, instead “they shall be constructed, when necessary, in accordance with Council’s Subdivision Code”.

16 The DCP also allowed the subsequent development of these new lots for residential purposes without the need to construct new roads. However in part 3(vi) of the plan, reference was made to a s94 Plan to:

“seek a monetary contribution, or the dedication of land, or both, to be put toward the provision of public amenities in the area”.

17 The DCP also required a contribution of $650 per lot based on lot yield towards the construction of intersections with Richardson Road.

18 The associated stage 2 plan allowed for smaller lot subdivision, accessed by a new internal loop road. The DCP provided some flexibility in the future alignment of this road. Part 4 (ii) states:

“All roads are to be constructed in accordance with Council’s Subdivision Code; the minor roads shall be constructed in either some form of feature type paved material for their entire length; or for a short distance to highlight the minor nature of the road”.

19 In part 4 (vi) of the DCP reference is made s 94 contributions for various public purposes, including:

“a cash contribution of $500 per allotment shall be paid for each allotment created within this subdivision and this contribution will be put toward the construction of drainage reserves in the locality, towards upgrading recreation facilities in the immediate locality or some other use in the locality…

20 Subsequently DCP 10 was replaced by DCP LD 7 in January 2001. The stated purpose of this plan was to assist in the “coordinated development of the subject land”. It contained Map No 1, which is consistent with the area plan in DCP 10 (Attachment 1). This DCP also maintained the stage 1 and 2 provisions, allowing development of the excised 4000sq m (approx.) lots without requiring any road construction. If further development of these lots was to occur, then the new lots were required to provide sewerage facilities and sealed access roads as detailed in the stage 2 provisions.

21 The stage 2 provisions of this DCP also maintained the same $500 per lot contribution for construction of drainage reserves etc. No specific controls were identified in the DCP in respect of any coordination of new road construction.

22 The next set of controls is contained in DCP 2007, which became effective 31 May 2007. This DCP contains savings and transitional provisions that allows applications made prior to the effective date, to be assessed under the previous controls. Notwithstanding this, it contains Part C2, specifically dealing with the subject Richardson Road area and retaining the 2 stage subdivision approach for this land.

23 Section C2.C6 requires subdividers to undertake a drainage strategy so as to determine local and catchment effects. Then the stage 2 controls provide:

C2.C10 All major roads and pathways shall be positioned in accordance with the layout on the map, with the reservation widths to be provided as indicated. The location of roads shall be generally in accordance with the layout on the map, unless it can be demonstrated to Council that an alternative road layout achieves the same objectives. Then some variation may be permitted. All roads are to be constructed at no cost to Council in accordance with Council’s Subdivision Policy.

24 According to the evidence submitted to the Court, the subdivision policy for the construction of the new access roads is contained in DCP PS3, which came into effect in September 2001. It incorporates extensive engineering criteria for the design and construction of new roads, drainage and other infrastructure. It does not however provide any useful guidance for the staged construction of the new roads, particularly where there are multiple property owners, as in the subject case.

25 I have listed these details on the evolution of the development controls for this particular area in order to understand what initiatives have been adopted to ensure the orderly subdivision of this land. Unfortunately it appears that no effective coordination effort for the new road construction has been made since 1987. Instead it has been left to the involved property owners (likely to be more than 20) to somehow undertake this task, to achieve some form of economic (relative to servicing) and orderly development.

Subdivision uptake

26 Despite the lack of a coordinated plan for the road construction, drainage strategy and other major services, the 1st stage seems to have been substantially undertaken by the property owners. This is shown in the table produced in Mr Warne’s evidence. This uptake is not unsurprising considering the considerable benefits obtained from such subdivision. However, the usual burdens associated with subdivisions such as new access road construction, were not required by council in stage 1.

27 Consequently, most of the future road reserve for Halloran Way has been either dedicated or transferred to council and the lots without frontage to Richardson Road allowed access via various ROWs, and without any time frame for construction. I understand this process has been confusing and do not consider it necessary to address these complications.

28 More critical for the subject application is that there has been no consistent approach to require the stage 1 beneficiaries to make any financial commitment to the construction of Halloran Way.

29 It is apparent that there would be little incentive for many of the original house owners fronting Richardson Road to now contribute towards this construction. Likewise, it appears that some owners have built upon the rear, larger 4000sq m allotments and prefer to retain the rural/residential character and not contribute new road construction. It seems to me that these circumstances were foreseeable, thus thwarting orderly road construction.

30 This undesirable situation then seems to have been compounded by the approval of further subdivisions and buildings on some of the stage 2 lots without requiring any road construction. The prime example is the adjoining property No 113A and B, where the following development has been allowed, as shown in Figure 2:

• No 113A (Lot 3 DP 842285). Approval was granted on 23 February 2004 for a substantial single storey dwelling, pool and shed. Whilst this new dwelling physically fronts Halloran Way, it was apparently allowed to retain access via the original ROW to Richardson Road. No conditions were imposed regarding construction, or proportional contributions for Richardson Road. Although, somehow a section of new road reserve at the rear of the dwelling was created, again without any road construction requirement.
• No 113B (Lot 1 DP 842285). In this case, approval was granted for a large single level dwelling and pool on 5 April 2001. Whilst it acknowledges the frontage “council owned land designated for new road”, there was no condition requiring construction or contributions for the future road. Instead access was allowed over a further extension of the ROW.

31 Unless some other arrangements have been made that have not been disclosed to the Court, it seems most unlikely these adjacent property owners will arrange for the construction of either Halloran Way or the new loop road in a timely manner.

32 However a different approach was adopted when the stage 1 subdivision of Lot 62 DP 28473 was approved on 17 June 1987. Its approval effectively excised the household lot for No 62 Richardson Road and created a new rear lot 1 with an area of 4486sq m, where the church has been erected. This subdivision also created Lot 2, a 20m wide strip for the future alignment of Halloran Way. Interestingly, condition 12 of that consent required:

12. The applicant shall contribute to Council, an amount of $12,500 which is equal to the half cost of constructing a public road in Lot 2. This amount will be subject to C.P.I. increases after December 1987.

33 Condition 10 of this consent also required the construction of a sealed road, 3.7m wide for the full width of the temporary public road. Also, condition 11 required ‘all access to Richardson Road to be via a single access point’, necessitating the relocation of a pipe crossing in Richardson Road. It appears however this has not been enforced.

34 Insofar as the applicant has identified other developments where no requirements have been made for the ultimate road construction, it is apparent to me that the subdivision process has been random and lacking coordination in respect of achieving the construction of the new access roads. It seems council has allowed continuing subdivisions/housing development, including stage 2, to be approved and access provided by additional ROWs, rather than by the new roads. An obvious outcome of this approach is that council will contribute to the shortfall in road works.

Applicant’s access proposal

35 As the current subdivision application (6 residential lots) represents the largest stage 2 development to date, the applicant proposes the initiation of the construction of Halloran Way. It is proposed to construct the full width of Halloran Way for the full (60m) frontage of the site. As this section does not directly connect with a public road, it is intended to use the council reserve (ROW) for connecting access.

36 However council opposes this access arrangement and instead insists on a condition requiring the full width construction of approximately 300m of Halloran Way, to connect with the existing public road at Lake View Crescent. The applicant considers this unreasonable and I am inclined to agree, particularly considering the random approach adopted in the past, where other beneficiaries of this new road have been let off from contributing.

Merits of utilising the ROW

37 On the basis of the applicant’s unwillingness to fully construct Halloran Way, I have considered the merits of this alternative access. Although the evolution of the ROW is somewhat confusing, it has been regularly used for access, especially the church attendees, involving up to 45 daily vehicle movements, twice a week.

38 The ROW (lane) is owned by council as a form of public reserve. It is 6m wide and bounded by dilapidated paling fences, which the applicant has offered to replace with 1.8m high acoustic fences. There are a number of mature trees in the ROW. In order to accommodate the increased traffic from the development from the subdivision, it is also proposed to remove the trees and construct a centrally drained concrete pavement. The concrete paving is to be 5.5m wide, leaving approximately 200mm each side for any replacement planting.

39 There was also some argument about the necessity and authority to safely connect this concrete pavement over the Richardson Road shoulder to the main road, due to control of this road by the RTA. In my assessment, some reforming and sealing of the shoulder would be required so as to make a safe intersection for the increased traffic.

40 From my merit assessment of the evidence, I particularly note firstly that one of the fundamental aims of the various DCPs has been to restrict direct access onto Richardson Road. Instead the DCPs anticipate the construction of Halloran Way, which is then to connect at designated intersections.

41 Even though there appears to have been little interest by council in facilitating this DCP outcome due to the proliferation of ROWs, I consider that the application of the s79C economic and orderly considerations for such development weigh against this option of allowing more traffic to directly access the limited access road, unless there is no reasonable alternative.

42 Furthermore, I note that the ROW is designated for public reserve purposes and I consider it would be an undesirable environmental outcome to remove all the mature trees with a replacement 6m concrete driveway, compounded by 1.8m solid fences. As the 5.5m wide pavement only leaves 200mm each side for planting, it is inadequate in my opinion, to maintain any similar vegetated character. This would create adverse visual amenity in this relatively attractive, vegetated setting.

43 I also consider that the proposed construction works in the lane would tend to enhance its primary function as a vehicular driveway. This would be to the detriment of pedestrian safety, which would have to share the driveway without any designated safe footpath. For these reasons then, I would not support the increased usage of this ROW as the main access way to the new development until other realistic options have been assessed.

Drainage

44 It is apparent from the evidence that there has been some recognition of the fact that residential subdivisions will likely change the run-off characteristics requiring new infrastructure. Mr Clarke prepared a drainage concept in March 2008 for the subdivision. Subsequently, council arranged for the engineering consultants, Parsons Brinckerhoff to prepare a drainage strategy (PBS) for this part of the catchment. This strategy was provided in November 2008, but has not been adopted by council at this stage. Consequently, there is no formal, overall drainage strategy, or drainage program for this development area, despite more intensive subdivisions being allowed since 1987.

45 Notwithstanding this, Mr Clarke undertook a drainage investigation in respect of the proposed development as required by the DCP. The investigation was to formulate a system to maintain the post-development discharges to that below the pre-development rural discharges. The resultant system comprises:

• Construction of new roads generally in accordance with the DCP layout.
• Construction of associated drainage reticulation.
• Construction of an on-site-detention (OSD) system designed for a full range of storms to hold water on-site and restrict the rate of discharge.
• Construction of an outlet pipe partway along the unformed Halloran Way to discharge into an enlarged, open tail-out drain.
  

46 The most contentious aspect of this system concerns the specification for the OSD. This specification is for the construction of 4 x 1200mm diameter pipes to be constructed under the new road pavement, parallel to the common boundary with the church. A special inlet pit is to be constructed at the upper end of these pipes, near the new loop road intersection. Another specifically designed outlet pit is to be constructed at the intersection of the new road and Halloran Way.

47 The engineers were subject to much examination concerning the suitability and effectiveness of this OSD. My understanding of this evidence is:

• The OSD can be finally designed with sufficient capacity to effectively reduce the rate of discharge to pre-development conditions.
• The construction of the 4x1200mm pipes, wholly under the road carriageway is an uncommon design feature. Usually road pavements depend on adequately compacted sub-grades and base courses. However the installation of the bank of 4 large pipes introduces additional uncertainty in achieving adequate bedding for the pipes, whose backfilling then has to be compacted to support the road pavement. Additional geo-technical assessment and certification would be required.
• The placement of these pipes is most likely to increase the future asset liability for council in terms of increased maintenance costs and maintaining the structural integrity of the new road.
• It is likely the asset life of this pipe system would exceed that of the road system and additional costs would be imposed on the community when the road asset is upgraded.
• This OSD is not part of any overall drainage strategy for the sub-catchment and the proliferation of individual OSD systems in a designated development area does not represent orderly development of the land. If and when an overall drainage scheme is constructed, it is desirable that interim solutions such as the OSD be removed.
• Apparently the PBS identified flooding problems in this catchment area further downstream and to the south of Richardson Road. It identified possible solutions involving the construction of a larger above ground detention system near 83/85 Richardson Road, however this has not been endorsed by council. It seems that the public interest would be well served by the adoption of a coordinated drainage system for this designated development area.

48 In summary then, I have significant reservations about the suitability of this OSD, considering it is to be a “temporary” solution. This type of construction is not common practice in terms of its scale and location and I accept it is likely to infer additional maintenance costs on the community in terms of maintaining the structural integrity of the road. I also consider that the public interest would not be well served by the approval of more of these individual OSD systems.

49 Insofar as some other matters were discussed during the hearing, I do not deal with them because they are not determinative compared to the threshold access and drainage issues present in this subdivision application.

Conclusion

50 In determining this matter I have carefully considered the planning framework applying to this development, the evidence, the submissions and undertaken a view. From this, I am not satisfied that the application as made merits consent.

51 Despite the fact that this land was designated for subdivision and other development, this is now inhibited because of the lack of an overall implementation strategy for the new road network and major drainage system. With regard to the new road works there does not appear to have been any commitment to coordinate the construction of Halloran Way or the new loop road.

52 On the contrary, it appears that the approach adopted by council in continually deferring road construction whilst allowing further development with access via ROWs is likely to thwart the attainment of the DCP objectives. This is the case with Nos 113 A and B where the like-hood of achieving adjacent road construction is quite uncertain.

53 Even though a contribution of $12,500 was paid in about 1987 in respect of the subdivision of No 62 towards half cost of the adjacent Halloran Way, this work is not done and the funds apparently no longer available. Furthermore, it appears that the first step in achieving the ultimate road construction, i.e. the preparation of an overall design to effect coordination of services and construction has not been commenced.

54 Under these circumstances, I have considered the access options discussed by the applicant. For the aforementioned reasons, I do not consider it appropriate to allow the main access to the subdivision via the upgraded lane in the ROW. If the applicant was prepared to accept council’s condition and fully construct Halloran Way (approx 300m) to Lake View Crescent that would obviously address the access issue. But I agree with the applicant that this condition is unreasonable.

55 The other access option of partial construction of the access via the available Halloran Way alignment to Lake View could result in a satisfactory 1st stage construction of the new road. I understand some consideration has been given the partial construction of a 4-5m wide, unsealed driveway to provide basic access. The applicant has indicated it is prepared to transfer its contribution for the total lot frontage construction of Halloran Way, to this alternative. Whilst this alternative has some practical attraction, I nevertheless acknowledge other associated issues could arise. One of these would most likely involve some complementary council funding.

56 Accordingly, this approach would represent an implementation policy and it seems to me that this is a matter for council. Under these circumstances I do not consider it appropriate to invoke this policy by way of a condition of consent at this stage. Therefore the access proposal for the development is unacceptable at this stage.

57 I also consider the interim drainage proposal, involving the construction and future maintenance of the 4x 1200mm diameter OSD system inappropriate. It is unfortunate that there is no overall drainage strategy, or s 94 plan for this long running residential development area. However it seems to me that there are other more conventional alternatives that could be investigated before the somewhat radical road piping OSD is approved. Such alternatives could be a form of above ground detention, either on the site, or on the dedicated/transferred Halloran Way road reservation. In my assessment, this OSD proposal does not merit consent and contributes to my finding that this application should be refused.

58 In accordance with the Court’s responsibilities to expeditiously resolve matters, I intend to make the following orders to dismiss the appeal and refuse the application. However, the making of these orders is stayed for a period of 14days for the applicant to make any further submissions, only on the draft conditions of consent.

59 I have also considered the submissions to the other cases but do not consider the circumstances are such that my findings would be altered. Further specific submissions on the cases can also be made on matters relevant to the findings.

60 The Court makes the following orders:

1 The appeal is dismissed.
2 Development consent is refused to DA No 16-2005-1393-01 for a 6-lot Torrens title subdivision of Lot 1 DP 735177, 103A Richardson Road, Raymond Terrace.
3 The exhibits may be returned except for 6, 7, A and G.

__________________________
R Hussey
Commissioner of the Court
ljr

Attachment 1