Barr Property and Planning Pty Ltd v Cessnock City Council

Land and Environment Court (NSW)|2021-11-18

The applicant's position that access is not required and reciprocal easements are adequate

Barr Property submits that, in circumstances where there is no active use on the site and no proposed use of the site, access to the subdivided lots is not required.
Barr Property relies on the purpose of the development application, which is for the creation of super lots to permit finance to be obtained in an orderly way so that development in accordance with the CDCP staging plan can be achieved for the creation of the industrial lots. This is explained in the individual expert report of Mr Barr, in the following way: "Under the current proposal, both lots 1 and 2 will be transferred to the developer of the site. It is understood that lot 1 will be paid for by the developer. Lot 2, this land will continue to be mortgaged by the current landowner, essentially allowing a form of finance to be provided over the balance of the site while protecting the landowners interest in the land. Lot 1 will then be burdened by a separate mortgage from a separate lender to allow finance to be provided for the ownership of the land and to deliver the works required to deliver the further subdivision of lot 1."

Access should be provided and the condition is inadequate

The fact that the proposed development is only for a paper subdivision, and that it does not seek consent for the use of land or for works, is not a sufficient basis upon which the absence of legal access to the subdivided lots is acceptable.
Whilst Lot 2 has frontage to John Renshaw Drive, Lot 1 does not. If the two lots come into separate ownership, which is facilitated by the subdivision, there will be no legal manner of access to Lot 2 without trespassing on other land. As there is no guarantee that the two lots will remain in the one ownership, there is an obligation to have satisfactory arrangements in place for access to each lot (see Cospak International Pty LTd v Mulwaree Shire Council [2002] NSWLEC 200 at [16]-[17]). The manner of legal access to Lot 1 ought to be included in the plan of subdivision so that it forms part of the subdivision, and its absence is unacceptable.
The absence of legal access to Lot 1 in the subdivision is unacceptable, firstly, because it is inconsistent with the provisions of the CDCP. Part D.1 of the CDCP requires, at Section 1.3.1(iii), that there be adequate all weather flood-free access to each allotment created by the subdivision, with one of the relevant aims of this control as to "ensure adequate vehicular access from the public road system to each new lot". Further, Part E.18 requires access to the area to be provided in accordance with the Concept Structure Plan, with the aim to "facilitate safe access for all vehicles to and from the site". The subdivision of land absent legal access to one of the lots is contrary to these provisions.
The absence of legal access to Lot 1 in the subdivision is, secondly, contrary to the public interest. Without legal access, if the lots come under different ownership there will be no ability for there to be maintenance of the land or preparatory work for development. Similarly, an owner of Lot 1 would not have access to their land to meet the bush fire hazard reduction provisions in Div 2 of Pt 4 of the Rural Fires Act. Given these provisions and the requirements associated with maintaining land, legal access that accommodates vehicular access should be available from a public road. Consistent with the decision in Farah, the provision of access cannot be left for consideration at some later time.
In addition, the Court cannot rely on the provision of future access to the subdivided lots by the future subdivision of the land, as there is no guarantee that the development of the land will occur in a manner consistent with the CDCP, and so the lots may remain in the form of large 'superlots' in perpetuity. That is, there is no guarantee that the two lots, once subdivided, would be developed in accordance with the CDCP. Even if the 40-lot subdivision is approved, there is no obligation for it to be carried out and nor is there a guarantee that it would be carried out. The absence of legal access is not cured by relying on subdivision taking place in the future that meets the vehicular access requirements in the CDCP.
The proposed condition of consent for the creation of reciprocal rights of carriageway and easements across the whole of the subdivided lots is an inadequate and inappropriate solution for the provision of legal access, and will not achieve the objectives of the CDCP such that a flexible approach to the above CDCP provisions can be taken pursuant to s 4.15(3A)(b) of the EPA Act. The reciprocal easements proposed do not provide certainty for the location and the extent of the path of travel from a public road to Lot 1. Instead, it gives the land that benefits from each easement the right to use the entire of the burdened lot for the purpose of access, which will stymy development of each burdened lot. If there is no co-operation between landowners of the two lots this will, in turn, sterilise the land for development, contrary to the objectives of the site specific CDCP. I note also that the easements would not necessarily be extinguished by the further subdivision of the lots, but could benefit the subdivided lots (see, for example, Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24 and Butler v Muddle (1995) 6 BPR 13,984).
The temporary easement option suggested by Barr Property in its submissions, which reflects option 1 of Mr Barr's suggested easements to provide legal access, addresses the issues identified in the paragraph above and would be a form of legal access that would ensure that legal access for vehicles would be available to each subdivided lot from a public road. However, there is no evidence in support of this easement which demonstrates that the location of the right of carriageway can actually be physically traversed within Lot 119 and proposed Lot 2, and what the impacts of such a right of carriageway would be. The evidence of Mr Rogers, which is relied upon by Barr Property, only goes so far as the path of travel from Black Hill Road to the site, and not beyond. Similarly, the evidence of Mr Barr does not set out the impacts that such a right of carriageway might have within Lot 119 and proposed Lot 2, such as whether there is an existing driveway within proposed Lot 2 where the right of carriageway is proposed, or whether trees will need to be removed or the topography of the land altered to make it traversable by vehicle.
Section 4.15(1)(b) of the EPA Act requires the consideration of "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". In Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [34], Preston CJ considered that "the likely impacts of a proposed development, the subject of a development application, can include likely impacts of activities other than the proposed development". As such, the mere facts that works to construct a driveway or access path within the right of carriageway are not proposed in the development application does not allow me to avoid an assessment of the impacts of the right of carriageway in the location proposed. Although the right of carriageway and easement are proposed by way of condition of consent (rather than in the plan of subdivision), it has a "real and sufficient link" to the proposed development and its impacts are therefore required to be considered in considering the impacts of the proposed development. Without evidence in support of this easement which demonstrates that the location of the right of carriageway can actually be traversed within proposed Lot 2, and what the impacts of such a right of carriageway would be, a temporary easement in the form outlined in Barr Property's submissions cannot be properly assessed and is therefore not supportable.
Finally, to the extent that Barr Property relies upon the earlier development consent for the subdivision of the land that created the site (DA 8/2018/942/1), that subdivision can be readily distinguished. The two-lot subdivision in that development consent resulted in two lots that each had road frontage and the site retained frontage to John Renshaw Drive. In the present development application, Lot 1 has no such road frontage.
For the above reasons, it is not acceptable to subdivide land without the provision of a legal form of access to each of the subdivided lots from a public road. As set out above, that legal form access is not sufficiently provided by the provision of reciprocal easements over the whole of the subdivided lots, as proposed in the conditions of consent. Nor is there is sufficient evidence for the assessment of the impacts of the temporary easement suggested by Barr Property in its submissions. Therefore, the development application must be refused on the basis that it does not provide a legal form of access to each of the subdivided lots.

Traffic assessment

The respondents each contend that the development application does not adequately demonstrate that the safety, efficiency and ongoing operation of the road network will not be adversely affected by the proposed development.
TNSW submits that, in circumstances where the road network is of State, Regional and National Significance, and where the future use of the site is projected to generate significant additional vehicle trips, whether the proposed subdivision will result in unacceptable impacts on the road network, needs to be assessed as part of this development application. Similarly, BHI submits that the proposed development gives rise to a 'traffic generation conflict' with the BHI concept plan approval, which is unresolved by the absence of a proper traffic assessment of the proposed development.
BHI submits that the CDCP does not envisage that the development of the site will rely on the provision of access from the BHI land, and that if the proposed development relies on access through the BHI land it will jeopardise the capacity for BHI to carry out development in accordance with the BHI concept plan approval. Instead, the likelihood is that with the relocation of the BHI intersection further to the east than what was in the concept plan, there will be additional intersections required to access the site from John Renshaw Drive than what is anticipated in the CDCP Structure Plan. BHI submits that any assessment of that should form part of the current proposed development.

The applicant's position that no assessment is required

Barr Property submits that, as the proposed development does not seek use of the subdivided lots and does not seek the carrying out of any works, the two-lot subdivision will not generate any traffic that requires assessment. Consistent with its position, Barr Property relies upon the Traffic Impact Assessment prepared by GTA Consultants dated 24 August 2021, which states that the proposed development will not generate any traffic or any parking demand.
Barr Property submits that any subsequent development of those lots that would generate traffic would be subject to a detailed assessment, but that any traffic impact from future development is outside the scope of the likely impacts of the present development application, and does not have a real and sufficient link to the same. As such, consistent with the reasoning of Baston JA in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349, Barr Property submits that the impact of traffic generated from future industrial development of the site would be so remote such that it would "disqualify it from the scope of the consideration".
Barr Property says that if it is wrong on that point, the Court can rely on the Traffic and Transport Port for the Black Hill Planning Proposal, prepared by Hyder Consulting Pty Ltd and dated October 2013 (Hyder report) and the Traffic Analysis Report for the Black Hill Traffic Modelling prepared for TNSW by SMEC Australia Pty Ltd dated 9 October 2020 (SMEC report). These reports assess the cumulative impact of development of both the site and the BHI site on the surrounding road network. Mr Rogers agrees that there has been no material change to the road network or developable area since the SMEC report, and that the creation of Lot 1 as part of the proposed development does not change the overall traffic generation of the subject site.
Further, Barr Property submits that the delivery of the structure plan in the CDCP is not compromised by the two-lot subdivision. It relies on the evidence of Mr Rogers, given in cross-examination, that the proposed development does not change the developable area across the site and will not compromise the delivery of the planning outcomes from the site as set out in the CDCP.

There is insufficient information to consider the traffic impact of the development

As outlined above, the proposed subdivision of land is not acceptable without a legal form of access to each of the subdivided lots from a public road. Further, its impact on John Renshaw Drive cannot be adequately assessed without defining such legal access and undertaking an assessment of the traffic impacts of the defined legal access based on anticipated traffic required for maintenance and other associated vehicles.
I accept the evidence of Mr Krljic that assessment of the broader road network impacts is not necessarily required for the 2-lot subdivision and that the traffic analysis to support the proposed development could be limited to identifying a feasible form of site access which will not adversely impact traffic safety and the efficiency of John Renshaw Drive.
I do not accept the position advanced by TNSW that a full assessment of three intersections is required in this development application, or that a full assessment is required to be carried out based on the entire site area being developed for industrial uses. As submitted by Barr Property, there is no use proposed in the development application and any proposed use of the land will be required to have a separate development application, and the traffic assessment of the full industrial development of the site can be considered at that time.
However, on the present development application, there is no traffic assessment that has been provided for a defined means of legal access by vehicles to the subdivided lots. The Traffic Impact Assessment prepared by GTA Consultants dated 24 August 2021 is inadequate, as it simply states that there will be no traffic generated by the proposed development.
The absence of a traffic assessment for a defined means of legal access is contrary to both the provisions of the CDCP and the SEPP Infrastructure. Control (c) of Part E.18 Section 18.1.7 requires the provision of a traffic impact assessment. Without it, I cannot be satisfied that there is no unacceptable impact on the traffic network. More particularly, I cannot be satisfied that, as required by cl 101 of the SEPP Infrastructure, "the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development", as there is no certainty as to what impact the subdivision will have given the absence of a defined means of legal access and an assessment of the impact of such access.
Contrary to the submission of Barr Property, this deficiency is not addressed by the Hyder report or the SMEC report, as they relate to the full development of the Black Hill Employment Area based on several assumptions, and do not relate to the proposed development.
For these reasons also, the development application should be refused.

Outcome of the appeal

For the reasons set out above, I have determined that development consent should not be granted in circumstances where the proposed subdivision of land does not include a means of legal access by a vehicle to each of the subdivided lots, and does not provide information on the traffic impact arising from the subdivision.
The Court orders that: 1. The appeal is dismissed. 2. The development application number 8/2020/123/1 for a two lot subdivision of the land at 1134 John Renshaw Drive, Black Hill (Lot 1 in DP 1260203) is refused. 3. The exhibits are returned, except for Exhibit A.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2022

The submissions that the access is inadequate

The respondents contend that it is not sufficient for Barr Property to rely on the development application being a "paper subdivision" in order to avoid or delay dealing with the issue of access to the subdivided lots. They point out that, even if the two lots are to remain in an undeveloped state at present, access is required not only for maintenance of the two lots, but also to meet the bush fire hazard reduction provisions in Div 2 of Pt 4 of the Rural Fires Act 1997 ('Rural Fires Act'), and to carry out preparatory work for development, such as valuation, surveying and preliminary planning matters. The respondents have made a number of submissions as to why the access provided in the reciprocal easements in the conditions of consent is inadequate, and why the means of access to each of the proposed lots ought to be specified with sufficient particularity prior to the grant of consent.
Firstly, TNSW submits that there is a lack of finality with imposing a condition of development consent that does not specify the vehicular access to the site, as this defers consideration of a relevant matter. TNSW submits that the deferral of the question of suitable access would result in a consent that is not final and therefore invalid. In support of this, TNSW refers to the decision of Talbot J in Farah v Warringah Council [2006] NSWLEC 191 ('Farah'), in which his Honour found that the imposition of a deferred commencement condition that allowed the final access arrangements "left to be decided by the council at the later time of approving the TMP" rendered the consent invalid as it "failed to finally consider and determine a relevant matter" (at [61] and [66]).
Secondly, and similarly, both TNSW and the Council submits that the reciprocal easements provide no certainty as to how the future access will be obtained, given their generality, which means that the condition is uncertain.
Thirdly, both TNSW and the Council submit that reciprocal easements across the entirety of proposed Lots 1 and 2 may have the effect of sterilising the land for development if ownership of the two lots is fragmented. Mr Rowan's evidence is that this would result in a "stalemate", which would prevent either owner for proposed Lot 1 and Lot 2 to develop anything and therefore undermine the strategic planning for the Black Hill Employment Area. TNSW submits that this is the antithesis of economic and orderly development for the purpose of an assessment under s 4.15(1)(c) of the EPA Act.
Fourthly, TNSW submits that, even if the easements are created, there is no information to satisfy the Court that physical access can be achieved from proposed Lot 2 over Lot 119 through to proposed Lot 1. That is, there is no evidence to demonstrate that physical access to either lot can actually be achieved, even if there is a legal means of access through an easement.
Fifthly, TNSW submits that, with respect to the easement over Lot 119 and Lot 13, there is an absence of owner's consent, contrary to the provisions of cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000. TNSW submits that this is a jurisdictional matter that prevents the grant of development consent subject to that condition.
Further, the Council submits that the failure to specify the manner of access is contrary to the subdivision guidelines in the CDCP. The aims and objectives of subdivision in Part D.1 includes to "ensure adequate vehicular access from the public road system", and the principles include to "minimise the creation of vehicular access points to any road and particular to main or arterial roads". A further control is for "adequate all weather flood-free access shall be available to each allotment to be created by the subdivision". Part E.18 of the CDCP also requires that development is consistent with the concept structure plan, including the location of vehicular access to the lots. As such, the Council submits that the proposed development does not develop the land in accordance with the concept structure plan and with the provisions of the CDCP.
Finally, BHI submits that the absence of a proper traffic solution for access to the subdivided lots will result in additional constraints on the BHI land, as the subdivided lots will rely on access via the BHI land. BHI submits that this could compromise the ability to develop the BHI land in accordance with the concept plan. In that context, BHI submits that, without a plan for access to the proposed lots, there is no assessment of the impacts of the proposed development on the BHI site and its development, whereas the impacts of a proposed development is a mandatory matter for consideration pursuant to s 4.15(1)(b) of the EPA act.

(2001) 116 LGERA 138

(2011) 184 LGERA 104

(2019) 242 LGERA 392

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)