Wilkie v Blacktown City Council
[1993] NSWLEC 20
•16 March 1993
LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
RECORD OF HEARING
CORAM: Talbot J
NUMBER: 10365 of 1992
MATTER: Robert Wilkie
V
Blacktown City Council
KEYWORDS: Development application for development within private lands and within public roads - EPA Act s.77 - consent of owner of private lands - consent of council to
development application in respect of roads - Land and Environment Court Act s.39(2) - exercise by the Court of council function as owner.
HEARING DATE: 8.2.1993 - 10.2.1993, 17.2.93, 19.2.1993
JUDGEMENT: Reserved
JUDGEMENT DATE: 16 March 1993
APPEARANCES: Applicant: Mr M Foley
Solicitor
of Foleys Solicitors
Respondent: Mr J A Ayling
instructed by
Moffat Sullivan Solicitors
IN THE LAND CORAM: TALBOT J
ENVIRONMENT COURT MATTER NO: 10365/92
OF NEW SOUTH WALES DECISION DATE: 16.3.93
Robert Wilkie
Applicant
V
Blacktown City Council
Respondent
Judgement
This an appeal against the refusal of a development application lodged with the respondent council by the applicant Robert Wilkie in respect of land situated at Marsden Park Riverstone.
Mr Wilkie is presently in contempt of orders made in this Court by Mr Justice Stein in matter number 40237 of 1989 on 17 July 1990 to remove building waste materials from lots 30 and 31 section 1 Deposited Plan 1227 Lytton Street Marsden Park and lots 7 and 8 section 3 Deposited Plan 1227 Marsden Road Marsden Park. The final determination of the charges of contempt against Mr Wilkie have been deferred pending the outcome of these Class 1 proceedings.
The development application was not concise in respect of the details of the proposed development but it was possible to glean the intentions of the applicant from the application. They have since been clarified by particulars furnished in a letter dated 23 October 1992 to the council's solicitors and further by the evidence of Mr Wilkie himself.
About 2,600 tonnes of ungraded demolition material comprising building rubble including steel, wood, iron, bricks, concrete and clay is presently stored on lots 7 and 8. The material on
lots 7 and 8 is in the form of a mound about 7 feet high extending over what appears to be the whole of lots 7 and 8 and possibly beyond. The mound has been ramped adjacent to the Marsden Road frontage and has been levelled along the top to form a rough platform. The material has not been consolidated and the sides of the mound have not been formed following the dumping of the material on the site.
There is a lesser amount of material on lots 30 and 31 where dumping has taken place in a random fashion. There appears to be a greater proportion of scrap metal in the rubble on these lots. On inspection it appeared that some of the material may have spilled across the actual lot boundaries although the actual boundaries could not be identified.
The properties the subject of the development application are all zoned 1(a) General Rural under Blacktown Local Environmental Plan 1988 (BLEP). Within that zone the only development that may be carried out without consent is agriculture (subject to certain exceptions) family day care centres and home-based child care centres (subject to access conditions). Other than for the nominated prohibited uses development may otherwise be carried out with the consent of the council. Clause 12(3) of BLEP provides that a dwelling shall not be erected on a parcel of land within the area in which the land is situated unless the parcel of land has an area of not less than 10 hectares.
The lands controlled by clause 12 are generally small lot subdivisions which existed prior to the introduction of planning controls. The release for full urban development has been deferred for the time being pending clarification in regard to the provision of services, particularly water.
The subject properties are flood affected but a lack of detailed survey information has inhibited proper investigation of the extent of actual flood impact. It is not disputed in these proceedings that the lands are inundated from time to time.
There is evidence of flood damage at the rear of lots 30 and 31 and on the adjoining lots 46 and 47.
Mr Wilkie controls a number of other lots apart from those already mentioned. Some lots are registered in his own name. Others are registered in the name of Mark Royal. Mr Wilkie told the Court Mark Royal is a name he uses for himself from time to time, particularly in a professional literary context. Many of the titles to lots the subject of the development are held by Noel Thomas Edwards. Mr Wilkie described Mr Edwards as a trustee for him.
The only evidence before the Court in relation to the relationship with Mr Edwards, apart from oral evidence from Mr Wilkie, is a document bearing date 20 July 1985 purporting to be a statutory declaration sworn by Mr Edwards declaring that he, at that time, was holding land in trust for Robert Wilkie known as Mark Royal and Harry Johnson. The land is not identified in the statutory declaration. What might be generously described as the purpose of the trust is set out in the declaration as follows:-
"I am holding the land in trust not for any illegal reasons but because Robert Wilkie has accused the Blacktown Council of illegal criminal activities which illegal housing fees, robbing people on buying and selling land and telling lies and outright fraud, harassment & victimisation and discrimination. Also he has had problems with scandal mongering T.V. & newspapers.
So, to avoid any problems. I am holding the land in trust for him, gladly & willingly as he is a good friend of mine & he trusts me."
Mr Wilkie informed the Court that the affairs of Mr Edwards are currently under the control of the Protective Commissioner who, he said, recognised him, that is Mr Wilkie, as the rightful owner of the land. He told the Court that the Protective Commissioner forwards rate notices to him for payment. However Mr Wilkie said that the Protective Commissioner had ordered him not to make any direct contact with Mr Edwards. Mr Wilkie stated that he provided the purchase money for the land held in the name of Mr Edwards and that the reason the title remained in the Mr Edwards name was that there were existing caveats on the title and that steps were required to have the caveats removed. The Court was told that the caveats had been placed on the titles by purchasers under terms contracts for sale under which the purchasers no longer had any interest. Although no original deeds were produced Mr Wilkie gave evidence that he held all of the deeds and papers signed by Mr Edwards to enable transfer to take place. The caveats were presently a bar to registration.
A search against certificate of title volume 15531 folio 72 refers to Noel Thomas Edwards as the registered proprietor of lots 30-31 section 1 DP 1227 and lots 46-47 section 1 DP 1227 subject to a caveat by Nora Kathleen Morgan.
The search and a copy of the certificate of title were produced by the council and tendered without objection.
A further computer printout taken from council property records was produced and accepted into evidence as an exhibit.
The following entries appear in council property records in the name of M Royal:
lots 194-197 section 4 DP 1227; lots 147-151, 153-157 section 5 DP 1227; lots 76-79, 80, 82-86 section 5 DP 1227; lots 69, 70, 71, 106, 109-112, 131-133, 136-137, 172 section 6 DP 1229;
The following entries appear in the council property records in the name of Robert Wilkie.
lots 117-119, 134-136, 138-141 section 8 DP 1229; lots 103-104 section 9 DP 1229; lots 7-8, 183-184 section 3 DP 1227; lots 53, 88, 93, 113, 118-120 section 4 DP 1227.
The following entries appear in the council property records in the name of N Edwards.
lots 30-31, 46-47 section 1 DP 1227; lots 24-28, 67-71, 120-124 section 3 DP 1227; lots 72-77, 129-132 section 4 DP 1227; lots 81, 91, 96-97, 136-137, 142, 152 section 5 DP 1227; lots 80, 117-118, 138, 175 section 7 DP 1229.
The Court is satisfied from the generally uncontested evidence of Mr Wilkie that on the balance of probabilities he is the owner of all lots upon which development is proposed either on the basis that he is entitled to the land for and estate in freehold in possession or that he is entitled to receive rents and profits as beneficial owner (see relevant definition at p 11).
Many of the road reserves in the area are unformed and in some cases cannot be identified by casual observation.
Parts of the made roads in the area have been finished with a bitumen surface. The remainder are gravel roads.
Mr Wilkie explained to the Court that his preference for the future use of lots 7 and 8 was as a stock pad to provide refuge for livestock, mainly horses, in time of flood. At other times it could be used as a picnic or recreation area which he would be prepared to make available to the public. He stopped short of agreeing to dedicate the land to council. The land would be landscaped with grass, after the spreading of topsoil, and the planting of trees. Mr Wilkie described the site as a glorious place for a picnic and suggested it could be used as a showcase to demonstrate the attractions of the area to potential purchasers of other land owned by him in the locality.
Mr Wilkie contends that the material on lots 30 and 31 can be readily utilised to repair the flood damage on those lands, the adjoining lots 46 and 47 and possibly extending into East Road. Any surplus could be used by application to the surface of East Road and Clive Road to provide a wet weather access to lots 46 and 47. Both of these roads are unmade. Physical access to lots 46 and 47 is available at present but only across lots 30 and 31 from Lytton Road.
Mr Wilkie put forward an alternative proposal for the use of the material on lots 7 and 8 in the event that the proposal for a flood refuge pad is rejected. He proposed that the material could be used to provide a surface on a number of the unmade roads to facilitate wet weather access. These roads are the southern most section of Lytton Road and the northern most sections of Delaware Road, York Road, Milton Road, Chaucer Road and Cleveland Road. Mr Wilkie gave evidence that he owns or controls a number of alottments which have a frontage to these unmade roads. These alottments currently have no reliable all-weather access. The proposal by Mr Wilkie is to crush the material stored on lots 7 and 8 then spread it within the road reserve and thereafter compact it by rolling or other means.
In addition to the use of material on lots 7 and 8 for the purposes of providing a road surface Mr Wilkie also proposes a perimeter track 7 feet wide within a series of adjoining or double alottments owned or controlled by him. In addition to Lots 7, 8, 30, 31, 46 and 47 already referred to Mr Wilkie proposes to build a perimeter track within the following alottments:-
Lots 183 and 184 section 3 DP 1227; lots 76-86, 91, 96-97, 136-137, 142, 147-157 section 5 DP1227; lots 110-112, 131-133, 136-137 section 6 DP 1229.
Any surplus material from lots 30 and 31 after repairing the flood damage and the sealing of East Road and Clive Road could be utilised in the sealing of other roads or for the perimeter tracks on private lands.
The subject land comprises several parcels of individual lots each with dimensions of 25 feet x 125 feet with a combined total area of less than 10 hectares. The lots are typical of the individual "terraced-style" alottments within the immediate locality each lot generally having an area of between 300m2 and 400m2.
PROPOSAL FOR A FLOOD PAD
Mr Gersbach, a town planner with the respondent council, described the proposal to provide a place of refuge in time of flood on lots 7 and 8 as ludicrous.
He was not able to point directly to any potential for damage to other properties in the immediate vicinity as a consequence of the impeding or redirection of the flow of flood waters. At best he was able to state that although the pad would cause a minor displacement of floodwaters it may affect the flow of sheet water across the land.
The elevated platform on lots 7 and 8 is in sharp contrast to the level of development on the surrounding lands. There are several residences nearby. Eastern Creek is adjacent to the east. There is a crown reserve for public recreation between this land and the busy thoroughfare along Garfield Road and the mound can be observed from Garfield Road.
The concept of an elevated mound on lots 7 and 8 is incongruous with surrounding development.
Apart from Mr Wilkie, who relied on his own experience, there was no evidence from any expert or other land user to support the demand for a flood pad as a refuge for stock in times of flooding. It was accepted that flooding in the area does not occur without some warning and the Court is satisfied that prudent stock owners could be expected to move animals to higher ground elsewhere in preference to leaving them on the constructed pad. This becomes self-evident by comparing the level of known flooding to the top level of the pad. One level roughly equates to the other.
The Court has not been persuaded that the mound would be utilised as a place of refuge for persons. Indeed if the pad was so used isolation could occur during extended periods of inundation thereby exacerbating danger and creating a need for rescue.
The vision of the platform being used for passive recreation as envisaged by Mr Wilkie is difficult to appreciate and unlikely to materialise.
The suggestion that potential purchasers of land might use the elevated mound as a viewing platform is not realistic.
The Court could be forgiven for suspecting that the concept of a flood pad or viewing platform was conjured up out of convenience rather than necessity and put forward with an unrealistic expectation that the necessity to remove that fill pursuant to the Court orders could be avoided.
In effect the Court is being asked to acquiesce in a proposal which defies its own orders without any justification in practical or planning terms.
In so far as the development application relates to the establishment of a flood refuge pad or viewing platform on lots 7 and 8 it is refused.
REPAIR OF FLOOD DAMAGE
It is self-evident that erosion has occurred on lots 30 and 31 and on the land to the east between those lots and Eastern Creek.
The evidence does not establish whether that damage is restricted to lots 46 and 47 at the rear or whether it extends into East Road and even beyond into other lands adjoining.
Mr Gersbach was not able to identify any serious adverse impact on adjoining land. He continued to hold reservations about the potential for the rectification work to block flow across the land and cause some banking up on land to the south. Careful engineering specification can resolve that potential. The improvements on the land to the south included a small building which from casual observation is used as a shed or possibly even as a dwelling.
Although he originally gave evidence that the fill on lots 30 and 31 was unsuitable material for use in the repair of flood damage he ultimately changed his mind when it became apparent that Mr Wilkie was prepared to crush and process the material before its application. He agreed that his previous objections to the use of the fill deposited on lots 30 and 31 had been overcome and that part of that fill could be used to rectify flood damage as proposed.
There was no dispute that the material presently on lots 30 and 31 comprised more than enough to repair the flood damage in the vicinity of lots 46 and 47.
The present size of the component parts of the material proposed for use in flood repair work or as a base for road or access ways is in the range of 75 mm to 500 mm and on average 150 mm. After sorting it will be necessary to crush the material before it can be utilised.
Mr Gersbach warned that the repair work should be carried out in such a way that existing trees were preserved.
Mr Wilkie explained that if consent was forthcoming to carry out the repair work he would first remove some of the topsoil from the damaged areas and then push the fill into the depressions. The surface would be levelled and then rolled. After rolling the topsoil would be replaced and sown with grass.
There has been no objection raised to the repair of the flood damage as proposed such as would justify refusal of that part of the development application. The application in respect of private land is confined to the repair of flood damage which is within the boundaries of lots 30, 31, 46 and 47.
Any consent to carry out work on other private land must be the subject of separate consideration.
Based on conclusions reached by me and expressed subsequently in relation to the sealing works proposed within road reserves there is no logical reason why the flood repair work might not be extended into East Road. That work could be carried out in conjunction with the proposed sealing of East Road and Clive Road if that proceeds.
SEALING OF ROADWAYS
The primary issue raised by the council is that it is the owner of the subject land, namely the roads, and that the development application has not been made with its consent.
Section 77(1) of the Environmental Planning and Assessment Act provides:-
A development application may be made only by -
(a) The owner of the land to which that development application relates; or
(b) Any person, with the consent in writing of the owner of the land to which that development application relates.
For the purposes of the EPA Act "owner" has the meaning ascribed thereto in the Local Government Act 1919 which, in relation to land, includes every person who jointly or severally, whether at law or in equity:-
(a)is entitled to the land for any estate of freehold in possession; or
(b) ................; or
(c) is entitled to receive, or is receipt of, or if the land were let to a tennant would be entitled to receive, the rents and profits thereof, whether a beneficial owner, trustee, mortgagee in possession, or otherwise; and includes every person who by virtue of the Local Government Act is deemed to be the owner.
Under s.232 of the Local Government Act every public road and the soil thereof by virtue of that Act vests in fee simple in the council and the council is entitled to be registered as the proprietor of the road under the provisions of the Real Property Act 1900. The vesting shall be deemed to be not merely as regards so much of the soil below and of the air above as may be necessary for the ordinary use of the road as a road, but so as to confer on the council the same estate and rights in and with respect to the site of the road as a private person would have if he were entitled to the site as private land held in fee simple.
For the purposes of s.77 of the EPA Act council is the owner of so much of the land covered by the development application which is comprised within the nominated sections of roads.
Pursuant to s.39(2) of the Land and Environment Court Act 1979 the Court has all the functions and discretion which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
In Sydney City Council V Claude Neon Ltd (1989) 15NSWLR 725 the Court of Appeal concluded that the Court can give consent to the making of a development application in respect of a structure projecting over a public road by giving consent to a development application on appeal. Hope JA undertook an analysis of the powers of councils in respect of roads vested pursuant to s.232 of the Local Government Act and to the extent of the Court's power under s.39(2) of the Land and Environment Court Act.
Pursuant to s.240(a) of the Local Government Act the council may in respect of any public road construct, improve, repair and cleanse the road with such materials and in such manner as the council thinks fit.
Any power under s.240 may be exercised on such conditions as the council deems proper at the request and cost of any person for the special though not necessarily sole convenience and benefit of his property (s.240(k)). This power is wide enough to enable a council to authorise road works to be carried out by a private person for his special benefit at the cost of that person in accordance with such conditions as council deems proper.
If an owner of land applies to a council for its consent to carry out authorised works the council does not have the right to arbitrarily withhold its consent (Hope JA in Claude Neon at p 729).
The council can give its consent to the lodging of a development application by giving development approval.
In Claude Neon Hope JA expressed the following view at p 732:-
"The giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s39(2) places the Land and Environment Court, upon an appeal, in the same position as the council. Section 39(5) provides that a decision of a court upon an appeal shall, for the purposes of the Land and Environment Court Act or any other Act or instrument, be deemed, where appropriate, to be the final decision of the body whose decision is the subject of the appeal and shall be given effect to accordingly. The decision of the court is thus, where appropriate, deemed to be the decision of the council, and in my opinion the subject case is an appropriate case. The court thus having the same powers as the council had when dealing with the application before it, it is empowered to give a consent which will operate as a consent by the council in its capacity as owner of the road to the lodging of the application for development approval."
The decision in Claude Neon has been the subject of subsequent discussions in the Court of Appeal and in this Court.
In Shellharbour Municipal Council V Rovili Pty Ltd (1989) 16NSWLR 104 Clarke JA delivering the judgement of the Court of Appeal (with which Samuels and Meagher JJA agreed) made the following observations at p 111:-
"The following propositions can be deduced from Claude Neon:
(1)Although the title to land upon which public roads are situated is vested under the Local Government Act, s.232, in the local council that does not mean that a council may treat the land as though it were private land. The council owns the land for the purposes of its use as a public road. As Hope JA said:
"They cannot do with the road everything that a private owner could do with his own land. They can only do those things which are authorised by or under the relevant statutes. A relevant function which is authorised is the controlling and regulating of structures of any kind extending from any land over the alignment of a road."
(2)If the owner of land applies to a council for its consent as owner of the road to the erection of a structure projecting over the road the council does not have the right arbitrarily to withhold its consent as the ordinary owner of private land might do.
(3)If a proposed development is one which ought to be approved then the council ought to give its consent to the lodgment of the application. Any failure to give that consent simply because the council wished to frustrate the right of the adjoining owner to obtain approval would be a use of its power for an improper purpose.
(4)Where a council gives its consent to a development application in respect of a structure projecting over a public road it is to be taken as having impliedly consented to the making of a development application. "...This conclusion is based upon the applicability of the principle that a council can impliedly exercise two powers when all it purports to do is to exercise one power"(per Hope JA).
(5)On the other hand where it declines its consent to the lodging of a development application the Court's power to review that action in an appeal under s.39(2) of the Court Act depends upon whether the giving of consent is a necessary incident to the power of the council to grant development approval.
(6)The giving of consent under s.77(1)(b) of the EPA Act to the making of an application for development approval in respect of the erection of a structure projecting over a road is a function of the council which is basic to its function to grant development approval in such a case.
(7)Accordingly, s.39(2) of the Court Act invests the Court with jurisdiction to exercise the power of the council to consent to the lodging of the application.
It follows from these propositions that if in the present case the respondent had awaited the period specified in s.96 of the EPA Act and then lodged an appeal upon the basis of the deemed refusal of the development application by the appellant the Land and Environment Court would have been empowered to exercise the respondent's power to consent under s.77(1)(b)."
Clarke JA continued at p 112:-
"As Hope JA pointed out in Claude Neon the council does not have the power of a private land holder arbitrarily to withhold consent. Nor would it be a proper exercise of its power to decline consent simply "because it wished to frustrate the right of the adjoining owner to obtain approval for the erection of the structure".
The council is placed in a special situation where an application is made to it for development approval for the erection of a structure partly on its road. The fact that it has not given its consent to the making of the application does not, as Claude Neon established, debar its consideration of the merits of the application. Furthermore, if it simply does nothing the applicant may appeal to the court which has all the powers of the council including the power to consent to the lodgement of the application."
Although it was not necessary for him to decide the issue in Paino V Woollahra Municipal Council (1990) 71LGRA 62 Hemmings J expressed the following opinion at p 69:-
In Mayoh, the refusal of the application by Council was said to be the subject of the appeal, and nothing in that decision or in Drew suggests that "the matter" is limited to the actual order made by Council. I adhere to the opinion expressed in Morris V Sydney City Council (1987) 69LGRA 30, that the functions or discretions that Council has in respect of the matter subject of an appeal to this Court is also a wider concept than the precise terms of the order or decision.
The function to grant Council's consent to the making of the application is an instance of the power to grant or refuse the application: see Rovili (at 112). It has only one ultimate purpose, that is, to enable the determination and disposal of a development application in accordance with the provisions of the EP&A Act. In my opinion, the only question in these proceedings is whether such function should be exercised in the circumstances of this case.
In Claude Neon it was held that the giving of a s.77 consent in respect of the erection of a structure projecting over a road is a function of the Council which is basic to its function to grant development approval in such a case. However, the Council submits that this matter is distinguishable, and that case turned on its own "special consideration" and facts. It is submitted that the Court of Appeal did not turn its mind to applications other than those which involved simple encroachments of structures erected on private property fronting roads. The Council submits that Rovili's case was intended to confine the decision of Claude Neon to those cases where application is made to erect a structure on private land which then projects over a public road. In my opinion, no such distinction was intended or is appropriate. Reynolds JA in Kogarah Municipal Council V Kent (1981) 46LGRA 334 at 336, described the words employed in s.39(2) as "wide and clear", and emphasised that the Court thereby could do whatever the Council could do to dispose of the appeal."
With respect I agree with the opinion expressed by Hemmings J.
Hope JA decided in Claude Neon (at p 731) that where there is not a such difference between the nature of the act of giving either consent which is to enable it to be said that the actions have nothing to do with each other then, a council which considers it should give development consent to a development application must also consider that it should give consent as owner to the making of the development application.
Neither the decision in Claude Neon nor the decision in Rovili is limited to those cases involving the erection of a structure on private land which projects over a public road. What the Court of Appeal has decided is that where the giving of consent to the making of the application by the owner of the land is subject to the same consideration relevant to giving of development consent then upon the grant of a development consent in respect of land owned by a council the council is deemed to have given its consent to the making of the application. The Court, on appeal, can exercise that function of a council pursuant to s.39(2) of the Land and Environment Court Act.
The submission to the contrary advanced by Mr Ayling on behalf of the respondent council is rejected.
Mr Wilkie proposes to carry out road works within a public road generally for his special benefit as the owner of land having frontage to those roads. He proposes to carry out that work at his own costs. The council as the owner of the land may authorise the carrying out of those works or carry them out itself. It does not propose to do the latter. The matters to be taken into consideration in deciding whether the works should be carried out include a consideration of the same matters that must be taken into account pursuant to s.90 of the EPA Act. It cannot be said that the act of giving consent as owner is an action so different to giving consent to a development application that they have nothing to do with each other. If the council was disposed to give development consent to the carrying out of the works proposed by Mr Wilkie, then, in granting that consent the council would be indicating that it also considers that should give consent as owner to the making of the development application. Likewise pursuant to s.39(2) of the Land and Environment Court Act if the Court decides that the development application should be granted, and does so, it would also be doing what the council could do and that is giving consent as owner to the making of the development application as required by s.77 of the EPA Act.
Evidence was given in relation to the merit aspects of this part of the development application on behalf of council by Mr Gersbach and the assistant manager pavement services Mr Kelly.
The main thrust of the evidence from Mr Gersbach was there was insufficient information submitted to council to enable the development application to be properly assessed. His concerns were directed to the lack of technical information in respect of the way the works would be carried out rather than an assertion that the works could not be ultimately carried out in a satisfactory fashion.
Mr Kelly told the Court that road base material can be manufactured from building rubble. It would be necessary to sort out unsuitable material either by hand or screening. He indicated that the material should be crushed to a maximum size of 60 mm although he preferred 40 mm. The material inspected could be used for a gravel road but not in its present form. In addition to a portable crusher, a grader and roller would be required.
Mr Wilkie, on the other hand, considered that the majority of the material would not require crushing but accepted that if required he would be prepared to meet the 60 mm specification for road use.
Mr Wilkie seemed to be under the impression that if he was required to carry out the work under council supervision he would not be treated fairly and that completion of the work in a reasonable fashion would not be achieved. He was clearly of the opinion that he should be entitled to make his own judgements and assessments in regard to the quality of the material and the method of its application and that any supervision by council officers in that regard would be unjustified.
Mr Wilkie must appreciate that council has the care and control of the roads under the Local Government Act and that any work undertaken on those roads must be to its satisfaction.
Mr Foley, who appeared for Mr Wilkie drafted an alternative set of conditions to those proposed by council. He deleted any requirement for the submission and approval of detailed plans for the works. He also resisted proposed measures to control the potential impact from the use of crushing machinery.
The Court is not satisfied that Mr Wilkie should be the final arbiter of the manner in which the work should be undertaken either from the point of view of the engineering specification or the use and handling of material and machinery on the site.
It is imperative that the works be undertaken in a manner approved by the council and under the supervision of its officers.
Where the proposed works involve the removal of any existing trees this should be the subject of a separate consideration in each case.
The council is not entitled to be arbitrary or unreasonable in the further approval and supervisory process. It is not unreasonable to expect that the council officers will deal with plans and specifications presented for approval expeditiously and fairly. Capricious and arbitrary decisions would be contrary to the duties and obligations of the council.
The Court is satisfied that the proposal to carry out works by Mr Wilkie on the nominated roads is a reasonable one and that it can be undertaken without unacceptable adverse impact on the environment. In all of the circumstances the development application as it relates to proposed works within the nominated road reserves will be approved, subject to conditions.
PROVISION OF INTERNAL DRIVEWAYS
The principle objection raised by Mr Gersbach on behalf of council in relation to the provision of sealed perimeter tracks around the boundaries of the nominated double alottments was that without a future nominated use for the subject alottments it is not appropriate to allow these works to proceed. He also expressed concern at the potential for tree loss.
Mr Wilkie explained that the provision of the perimeter tracks will facilitate the use of the land ultimately for the purpose of handling horses usually in conjunction with stables, yards and the like. Some of the land has already been improved with white painted timber rail fencing.
It was not contended by the council that the use of the land for the ultimate purpose associated with horses was unsuitable or contrary to the provisions of BLEP. Mr Gersbach raised a doubt as to whether there would be sufficient area within a double allotment after provision of the perimeter track to facilitate proper utilisation of the land for a future purpose.
The proposal does not involve filling of the land. Mr Wilkie proposes to lay approximately 7.5 centimetres of material and then roll it rather than compress it. It would not be necessary, in his opinion, to crush the material to the same specification required for the roads. Each driveway, or track, would be about 2.1 metres wide.
The council suggests that the construction of the driveways should not result in an increase in level of the land by more than 150 mm. If a condition to that effect is imposed the Court is satisfied that the works will not present an unreasonable constraint to the future development of the land in the event that an ultimate owner does not utilise the whole of the perimeter track.
No evidence of adverse effect on the environment such as would justify refusal of that part of the development application dealing with sealed driveways has been adduced.
Mr Wilkie will be granted a development consent in respect of those works subject to conditions.
The Court makes the following orders:-
1.That development application in respect of the embellishment of lots 7 and 8 section 3 Deposited Plan 1227, Marsden Road, Marsden Park and the use thereof for the purposes of a stock refuge pad or public recreation area is refused.
2.Development application to use demolition material and building rubble presently stored on lots 30 and 31 section 1 Deposited Plan 1227, Lytton Road Marsden Park for the purpose of repairing flood damage on lots 46 and 47 section 1 Deposited Plan 1227 and on East Road Marsden Park is granted subject to the conditions attached hereto.
3.Development application to carry out road works in the southern most section of Lytton Road and the northern most sections of Delaware Road, York Road, Milton Road, Chaucer Road and Cleveland Road, Marsden Park utilising demolition material and building rubble presently deposited on lots 7 and 8 section 3 Deposited Plan 1227 Marsden Park is granted subject to the conditions attached hereto.
4.Development application to carry out road works in East Road and Clive Road Marsden Park utilising demolition material and building rubble presently deposited on lots 30 and 31 section 1 Deposited Plan 1227 Marsden Park is granted subject to the conditions attached hereto.
5.Development application to construct a gravel perimeter track within lots 30, 31, 46, 47, section 1 DP 1227; lots 7, 8, 183-184 section 3 DP 1227 lots 76-86, 91, 96-97, 136-137, 142, 147-157 section 5 DP 1227; lots 110-112, 131-133, 136-137 section 6 DP 1229 Marsden Park using demolition material and building rubble presently deposited on lots 30 and 31 section 1 Deposited Plan 1227 and lots 7 and 8 section 3 Deposited Plan 1227 Marsden Park is granted subject to the conditions attached hereto.
6.The Exhibits may be returned.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 20 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGEMENT HEREIN OF THE HONOURABLE MR JUSTICE TALBOT
ASSOCIATE
Conditions of Consent
Rectification of Flood Damage on Lots 46 and 47, Section 1, DP 1227, and East Road, Marsden Park
(a)All work undertaken on the subject properties is to utilise the fill already placed on the adjoining Lots 30 and 31, section 1, DP 1227, Lytton Road. No further fill of any description is to be brought onto the land, other than the topsoil referred to in condition (f) below.
(b)Any metal, timber or foreign matter is to be removed from the existing fill on the land prior to it being covered with topsoil.
(c)A plan detailing the nature of work to be undertaken and the manner in which the fill on adjoining lots 30 and 31 is to be sorted, compacted and retained is to be submitted for the separate approval of the Director of Engineering. Work is to carried out in accordance with council's approval of the submitted plan.
(d)Work-as-executed plans, certified by a practising structural engineer, are to be submitted in relation to works required by (b) and (c) above.
(e)A detailed erosion and sediment control plan is to be prepared for the separate approval of the Director of Engineering. Such plan is to indicate the manner in which the fill is to be compacted and retained on the subject land including batter and boundary treatments. The plan is to be submitted to council and approved before commencement of any work. Appropriate work is to be carried out in accordance with council's approval of the submitted plan.
(f)The existing fill, once sorted in accordance with condition (c) above and appropriately confined, compacted and retained in accordance with conditions (a) and (e) above is to be covered with 300 mm of top soil to the satisfaction of council's Director of Engineering.
(g)The top soil referred to in condition (f) above is to be immediately turfed so as to ensure that the top soil and other fill material is retained on the site. The sowing of grass seed and runners in not acceptable in this regard.
(h)Should the crushing of rock or concrete be carried out on site Lots 46 and 47 or adjoining Lots 30 and 31 this work is to be confined to the hours of 10.00 am and 4.00 pm Monday to Friday and is to be undertaken totally on the subject lands.
(i)Any crushing machinery used is to be provided with suitable measures, such as rubber lining on outlet shutes and bins and the provision of wide angle dust sprays, in order to reduce potential noise and dust impacts. Details to be submitted for the separate approval of council prior to the commencement of any crushing work.
(j)Documentary evidence that compliance with the requirements of the NSW Water Board has occurred is to be submitted to council prior to the commencement of any further work on site.
(k)Work-as-executed plans, certified by a practising structural engineer, are to be submitted to council upon the completion of works required by above conditions (c), (f) and (g).
(l)On the completion of all filling activity authorised by this approval the site is to be free-draining and shall be compacted to the satisfaction of the Director of Engineering.
(m) Compliance with any requirements of the Environment Protection Authority in relation to any rock or concrete crushing work to be undertaken.
Upgrading of Public Roads
(a)All work to be undertaken in accordance with the provisions of the Local Government Act, 1919.
(b)All public roads are to be constructed to a standard suitable to provide a dust-free and self draining access. Detailed plans including cross-sections of proposed roads are to be submitted for the separate approval of the Director of Engineering prior to the commencement of any work on public roads.
(c)Work-as-executed plans, certified by a practising structural engineer, are to be submitted in relation to works required by (b) above.
(d)Should the crushing of rock or concrete in association with the upgrading of public roads be carried out this work is to be confined to the hours of 10.00 am and 4.00 pm Monday to Friday.
(e)Any crushing machinery used is to be provided with suitable measures, such as rubber lining on outlet shutes and bins and the provision of wide angle dust sprays, in order to reduce potential noise and dust impacts. Details to be submitted for the separate approval of council prior to the commencement of any crushing work.
(f)Compliance with any requirements of the Environment Protection Authority in relation to any rock or concrete crushing work to be undertaken.
(g)Separate council approval is to be obtained for the removal of any trees. This consent does not authorise tree removal of any description.
3. Provision of Sealed Driveways on Lots 30, 31, 46, 47, section 1 DP 1227; lots 7, 8, 183-184 section 3 DP 1227; Lots 76-86, 91, 96-97, 136-137, 142, 147-157 section 5 DP 1227; Lots 110-112, 131-133, 136-137 section 6 DP 1229 Marsden Park.
(a)Driveways are to be provided to the front, rear and side boundaries of double or triple alottments only.
(b)The provision of driveways is not to involve the filling of land by depth of more than 150 mm.
(c)Separate council approval is to be obtained for the removal of any trees on each allotment. This consent does not authorise tree removal of any description.
(d)All driveways are to be confined to a width not exceeding 2.5 metres.
(e)Suitable rural type crossings are to be provided where each driveway joins an existing graded public road. Details to be obtained from council's Engineering Department.
(f)No further fill of any description is to be placed on the subject properties.
(g)A detailed erosion and sediment control plan is to be prepared for the separate approval of the Director of Engineering. Such plan is to indicate the manner in which the fill is to be compacted and retained on the subject properties including batter and boundary treatments. The plan is to be submitted to council and approved before commencement of work. Appropriate work is to be carried out in accordance with council's approval of the submitted plan.
(h)Should the crushing of rock or concrete in association with the provision of sealed driveways be carried out this work is to be confined to the hours of 10.00 am to 4.00 pm Monday to Friday.
(i)Any crushing machinery used is to be provided with suitable measures, such as rubber lining on outlet shutes and bins and the provision of wide angle dust sprays, in order to reduce potential noise and dust impacts. Details to be submitted for the separate approval of council prior to the commencement of any crushing work.
General Conditions
(a)This consent does not, in any way, authorise the use of any of the subject properties for a purpose not clearly stated in this approval.
(b)Separate development consent is to be obtained from council for any further proposed works including horse stables, farm sheds or the like. Separate information can be obtained from council's Town Planning Department in this regard.
(c)All fill not used in accordance with the conditions of this consent is to be removed from the subject properties and disposed of at an authorised waste depot prior to the completion of works.
(d)All other material displaced as a result of work being undertaken in accordance with this consent is to be removed from the subject lands and disposed of at an authorised waste depot.
I HEREBY CERTIFY THAT THIS AND THE PRECEEDING 6 PAGES ARE A TRUE AND ACCURATE RECORD OF THE CONDITIONS FOR CONSENT IN THE REASONS FOR JUDGEMENT OF THE HONOURABLE MR JUSTICE TALBOT
ASSOCIATE
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