Paul Lemottee Project Management Pty Ltd v Port Stephens Council (No 2)

[2009] NSWLEC 1302

Land and Environment Court

of New South Wales

CITATION:

Paul Lemottee Project Management Pty Ltd (No 2) v Port Stephens Council [2009] NSWLEC 1302

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 subdivsion, interim access road, drainage construction, orderly development

LEGISLATION CITED:

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

DATES OF HEARING:

1 September 2009

 
DATE OF JUDGMENT: 

2 October 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Mallik (Solicitor)
SOLICITOR
Mallik Rees Lawyers

RESPONDENT
Mr M Fraser (Barrister)
SOLICITOR
Harris Wheeler Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

2 October 2009

10300 of 2008 Paul Lemottee Project Management P/L v Port Stephens Council (No 2)

JUDGMENT

Background.

1 These proceedings arise from my findings handed down on 5 June 2009. Those findings related to a proposed 6 lot subdivision at 103A Richardson Road, Raymond Terrace and concluded that the application should be refused on a number of grounds, being primarily the drainage and access arrangements.

2 However the making of those orders was stayed to allow the parties to make further submissions concerning conditions that could be imposed to address the unacceptable matters. In this regard, consideration was given to the extensive delays experienced by the applicant in obtaining directions regarding the future implementation strategy for the road access and drainage infrastructure in this particular area zoned for residential development.

3 Consequently, the applicant has made further submissions on the basis that subdivision layout remains unchanged but the following aspects are revised:

• Access; It is now proposed to undertake the 1st stage construction of Halloran Way within the existing road reserve acquired by council, in lieu of access via the council ‘laneway’. This construction involves a 4m wide pavement, with shoulders, table drain passing lanes and pavement depth suitable for the initial level of anticipated traffic generated by the development. It is to connect the proposed half width construction of Halloran Way, adjacent to the frontage of the subject land to the existing pavement at Lake View Crescent – a distance of approximately 200m.
• Drainage; The revised drainage now proposes for individual on site detention systems to be constructed and maintained on each of the new lots, so as to restrict outflows from the site to pre-development outflows. The OSD then is to be connected to an internal drainage system within the road reserves to collect and transfer the stormwater to the outlet of the site. This outlet is then is to be connected via a new drainage pipe along the existing ‘laneway’ to the existing drainage system in Richards Road.

4 In addition to this, both parties have made submissions about possible conditions that could be imposed to address the outstanding issues. Accordingly, I now deal with these issues, in the overall context of my original findings.

5 In doing so, I note that there were a number of objections to the revised proposal and these mainly refer to the safety and adequacy of the staged construction of Halloran Way, impact on existing accesses to neighbouring properties and concerns about adverse flooding.

Drainage

6 Originally it was proposed to control the drainage runoff by the construction of an on-site-detention system comprising a series of drainage pipes located within the road reserves. This system was found to be unsatisfactory.

7 The revised design has been assessed by Mr S Holle (applicant’s consulting engineer) and Mr B Clarke (council’s consulting engineer). They have agreed that this proposal is a satisfactory interim solution to address the drainage issue, until such time as an overall drainage system is implemented. The ultimate system being likely incorporate some of the components recommended in the Parsons Brinkerhoff (PB) strategy report, to which this revised system could be connected to.

8 The council accepts the feasibility of this interim solution and has proposed conditions to cover the construction and maintenance of this drainage system.

Access road ;

9 The revised access proposal is to construct an initial access way along the existing, but unformed section of Halloran Way, which has been dedicated to council. This is to avoid the problems identified with the original proposal for access via the ‘laneway’.

10 This revised access has been considered by Mr T Keating (applicant’s traffic consultant) and Mr J Gleeson (council’s traffic engineer). They described this revised proposal as comprising:

• The access way being contained within the council road reserve, as dedicated for the extension of Halloran Way to the west;
• A 5.5m sealed pavement being constructed along the frontage of new lots 1 & 2 (north of the centreline). In effect, this is the ultimate construction of half the new road, adjacent to the development.
• Construction of a 4m wide sealed section from the eastern boundary of the subdivision to the existing construction of Halloran Way near Lakeview Crescent. This is to provide for 1-way traffic flows and includes the provision of passing lanes, road shoulder and table drains.

11 The traffic experts have assessed the likely traffic generation by the users from the subdivision, consisting of the Jehovah Witness Church congregation and the other 15 existing homes that could use the access. On this basis they agree that:

• The estimated traffic generation is a total of 14.4 trips/hour, with a split of 80% in the peak hour.
• The church events traditionally do not occur in the peak hour and is 1 directional over a short period before and after any event.
  

12 Accordingly, these experts then agree that the extent of the proposed road works for this subdivision is satisfactory on the basis that:

• The proposal can operate as a 1st stage of construction, pending the ultimate construction so as to provide a reasonable level of access service and safety, in the interim period.
• Conditions should be imposed regarding the location of the 2 passing bays to optimise sight lines.
• A priority directional system be adopted using appropriate “Give Way” signs.
• Appropriate road works being constructed at the intersection with the proposed Road 2.
• Adjustments to the existing pavement adjacent to the church.
• The provision of the unsealed shoulder areas either side of the 4m carriageway of this interim connection road to satisfy the Road Safety Audit Zone requirements for a 50kph speed limit.

13 The submissions for the council are that while this 1st stage road works will provide satisfactory physical access, it is unacceptable in the context of the orderly development of this section of land.

The evidence

14 In the first instance, I accept that the revised drainage proposal and access arrangements can be satisfactorily implemented as a 1st stage of the construction of this development on the basis of the aforementioned engineering opinions. Accordingly, the applicant’s submission is that the conditional consent should now be granted.

15 However, council’s primary submission is that if this subdivision is to proceed, then the applicant should fully construct the unformed section of Halloran Way, so as to satisfy with the provisions of DCP 2007. Otherwise the orderly development objectives will be thwarted. But, the applicant challenges this on the basis that the relevant control is DCP LD7, the provisions of which the council has not consistently adhered to.

16 Reference to both documents shows that the intent of the controls is substantially maintained, however I accept that the saving provisions result in DCP LD7 being the relevant DCP. In summary, both controls allow for the two-stage subdivision of the land, generally into allotments with a minimum area of 4000 sq m, without any road construction in the 1st stage, providing the future road reserve is transferred/dedicated to council.

17 The Stage 2 provisions then provide for:

• Further subdivisions in accordance with the “Accompanying Map” (Map).
• The location of new roads to be generally in accordance with the Map and are to be constructed in accordance with the Subdivision Code (Code).
• Pursuant to Section 94 of the EPA & Act, council shall seek a monetary contribution, or the dedication of land, or both, to be put toward the provision of public services and public amenities in the locality.

18 Insofar as this DCP refers to the subdivision Code (DCP PS3), it appears to be a comprehensive document dealing with the design, construction and maintenance of new civil infrastructure. It contains very limited references to any road implementation strategy to achieve the orderly development objectives.

19 Of some relevance however are the following references:

• Section 1.4 Objectives
• To promote subdivision development which is of high design standard and which minimises impact on the environment;
• To ensure cost-effective subdivisional development reflecting appropriate community standards for health, safety and amenity;
• To ensure that there is adequate provision of infrastructure and services and to minimise Council’s future maintenance costs for public roads and services;
• To provide a functional, attractive and safe environment for residents.

20 Section 5.4 – Design Criteria; requires all new roads in a subdivision to be fully constructed. Then Section 5.6 – Adjoining Road Works allows:

“Where an urban subdivision fronts one side of an unconstructed Public or Reserve Road, the developer shall construct one half of the road to the Council’s current urban standards,…”

21 Consequently, it is apparent to me that the Code allows for partial construction of roads in some circumstances. The application complies with the requirements because the full width of the new subdivision roads is to be constructed. Also, the complete half width of Halloran Way adjacent to the subdivision is to be constructed, thereby satisfying section 5.6.

22 It then seems to me that section 5.6 envisages some ‘piecemeal’, half road construction of adjacent frontage roads. This situation could apparently occur if other property owners on the northern side of Halloran Way decided to subdivide their land. But in the current matter the applicant proposes the effective half width construction of the entire ‘missing section’ of Halloran Way to provide access. As the engineers agree this is adequate as a 1st stage, I consider the general objectives to achieve a functional, safe, cost-effective can be achieved in this proposal.

23 Insofar as Mr Fraser submits that allowing the subdivision to proceed on the revised basis would be inconsistent with the policy behind the DCP and not represent orderly development, it is apparent that council actions in the past have not been directed towards facilitating the orderly development of this residential land as evidenced by the absence of any specific provisions in the DCP for coordination of the construction of Halloran Way. Instead, the council’s approach has been to wait until somehow the 20, or so individual property owners agree on a construction program. However this has not proven successful over a 30 year consideration period.

24 Furthermore, the council appears to have significantly compromised the intent of the DCP, to the disadvantage of some property owners seeking to subdivide in accordance with the Map. This can be seen by reference to the ‘allotment sizes plan’ in Annexure “1”. It shows a number of subdivisions e.g. No 113 A & 113B that are Stage 2 subdivisions (i.e. areas less than 4000 sq m), which have been approved without any road (Halloran Way) construction requirement condition, in accordance with the DCP. As I noted in my previous findings, the subsequent form of housing development of these lots puts a high degree of uncertainty on the future construction of Halloran Way adjacent to these lots.

25 In my assessment, this situation is even more unsatisfactory because the new road between lots 113A and 113B, was not required to be constructed and the likelihood of this occurring in the foreseeable is somewhat remote considering the new houses approved on these lots.

26 The council’s practice of allowing continuing development on the basis of increasing numbers of right-of ways (ROW), particularly for the Stage 2 developments does not represent orderly development in my opinion. This is confirmed by the stuff up that has occurred with some ROWs being extinguished and legal access denied to a number of properties, thereby necessitating substantive remedial action.

27 It appears then that council sought to address this unsatisfactory situation to some extent in late 2008 after realising its errors with the land dedications and creation of ROWs and put an alternative proposition to the property owners.

28 The proposition is listed in the ‘Residents Briefing Note’ of 12 September 2008 includes an acknowledgement of the unintended consequences of the dedication of council’s land as a public road. It also includes the following items:

• 12 Stage 2
  c. The Council will construct as an interim measure a 4m wide gravel road within the Halloran Way road reserve east of No 93 Richardson Road, which is a interim standard suitable in the short term for the existing pattern of development to the north of the Halloran Way reserve. This will include gravelled passing bays every 200m, and provision of table drains and culverts under the road as required by the drainage study…
  e. Once this 4m wide gravel road within Halloran Way has been constructed, the lots to the north (furthest from Richardson Road) will be required to use this road rather than continue to access via existing tracks to Richardson Road, and the reinstated easements for right of way will cease to benefit those lots at this point.
• 13 Stage 3
  a. Subject to the outcomes of the drainage study, the availability of funding, and consultation with affected owners, the Council may upgrade the construction of Halloran Way from a 4m wide gravel road to a 6m wide sealed road, taking two lanes of traffic, for some or all of its length, before any further subdivision of land is proposed.
  b. Whether this upgrade will be appropriate, and if so how much of Halloran Way would be so upgraded, depends on a number of factors which cannot be fully assessed at this point.
• 14 Stage 4
  a. As and when owners seek to consent to subdivide into residential size lots, they will be required as a condition of any consent to upgrade construction of Halloran Way for its frontage with their land and, for half width of the road, to the standard required to service residential development. Depending on the extent of prior construction to this standard at the time of application, applicants may also be required to upgrade other parts of Halloran Way extension at this time.
15 For the proposed solution to be most effective, it will be necessary for all lot owners involved to agree to proceed in this manner Should a significant number of affected owners disagree, it will be necessary for Council to consider whether it is appropriate to proceed with the staged solution outlined above.

29 I understand from the applicant’s submissions that there was a lack of interest in this solution by the owners. However it appears to me that the applicant is now prepared to undertake all of the “Stage 2” construction of Halloran Way, substantially in accordance with the aforementioned ‘staged solution’. On the basis that council recently considered this a feasible option, it is now puzzling that council withdraws from this option, even though it achieves the “Stage 2” construction outcome it proposed.

30 I understand from the submissions that adherence to this solution may incur council in some expense for a component of the upgrading but this also seems unsurprising given that council has previously levied and obtained cash contributions from some adjacent property owners for adjacent road works. These include the church, the child care centre and the original subdivision of No 62 Richardson Road where a contribution of $12500 was apparently paid. Presumably some of these contributions (estimated in the order of $60,000) would be available to be applied to the purpose for which they were collected.

Conclusions

31 Having carefully considered the evidence, the submissions and undertaken a view, I am satisfied the applicant’s revised proposal merits conditional consent.

32 This section of land has been zoned so as to permit low-density residential subdivisions for approximately 30 years. Even though this form of development obviously requires the coordinated construction of drainage and Halloran Way road works, very few, if any positive initiatives have been undertaken by council to facilitate the orderly drainage or road construction.

33 Insofar as a trunk drainage investigation has recently been undertaken, no strategy has been adopted. Consequently, the applicant’s interim solution represents a reasonable outcome in the circumstances, according to the drainage engineer’s opinion, which I rely on. In doing so, I note that the S94 Developments Contributions Plan does not require any contribution towards trunk drainage.

34 With regard to access to new lots, council seems to have relied on the creation of multiple ROWs and avoiding the ultimate construction program. Likewise it has not formulated any s 94 contribution program for this essential infrastructure. As previously stated, this approach has not been successful.

35 The most recent initiative contained in the ‘Briefing Note’ provided for the owners to cooperate in the “Stage 2” construction of Halloran Way. In the absence of any such agreement, the applicant now proposes to substantially implement council’s interim solution, but to marginally higher standard due to the inclusion of the 2-coat seal over the gravel pavement. This will then allow for progressive upgrading of the road standard as others wish to subdivide or develop.

36 In these circumstances then, I consider this is a reasonable amount of construction because:

• It provides a satisfactory level of access to the new 6-lot subdivision as agreed by the engineers and on the approved DCP alignment.
• It provides opportunities for improved and safer access to some of the existing developments by restricting their reliance on ROWs.
• There will be an improvement in the amenity of the area because the sealed road will reduce dust nuisance.
• The access for the church should be improved and safer according to the engineer’s opinion.

37 Consequently, I consider council’s current requirement for this applicant to fully construct Halloran Way to be completely unreasonable because this 6-lot subdivision does not generate the need for such standard of road. Ultimately this may be required, but it would be reasonable for all beneficiaries to proportionally contribute. The imposition of council’s ‘full width’ condition would be unreasonable because it provide the new road for the benefit of other adjoining property owners without their contributing.

38 Accordingly, I am satisfied that this proposal generally satisfies the DCP PS7 objectives concerning the construction of new roads on a functional, safe and cost-effective basis. I note that this DCP does not contain any specific conditions regarding the orderly construction of external lead-in roads and therefore consider the proposal, which is in accordance with the briefing note approach is reasonable in the circumstances.

39 I acknowledged initially that some further objections were lodged against this revised application. With regards to the concerns about drainage and flooding, the subdivision drainage will divert and collect the storm water and not increase the rate of discharge. Also, the proposed 1st stage road construction will incorporate a table drain along the side of the construction, which will intercept some overland flows and reduce, although probably not eliminate all overland flows.

40 Other objections concerned the partial construction of Halloran Way due to a preference that it be fully constructed. However, I consider the timing of the upgrading is a separate matter for council. But I do not consider any property owner will be disadvantaged by the staged construction. In this regard, I particularly note that the applicant is to provide a 2-coat seal on the new pavement, which raises the standard to that initially proposed by council and this will control the dust concerns raised by some neighbours. Otherwise the neighbour’s and council can proportionally contribute to the ultimate upgrading of the road, at the appropriate time.

41 Apart from this, there was some minor disagreement about the conditions of consent. Provided the conditions are amended to reflect this judgement, then consent can be granted.

42 The Court orders:

1 The appeal is upheld.
2 Development consent is granted to DA No 16-2005-1393-01 for a 6-lot Torrens Title subdivision of Lot 1 DP 735177, No 103A Richardsons Road, Raymond Terrace subject to the conditions in Annexure 2.
3 The exhibits may be returned except for 14, K and N.
_______________________
R Hussey
Commissioner of the Court
rh/ajl/ljr

“Annexure 1”