Consideration
29I accept the evidence of the applicant and Mr Brian Bopping that the section of O'Briens Road between Cooma Road and the point at which it turns to the north, being some distance to the west from the site, is presently used by adjoining landowners for agricultural purposes, and is adequate for that use. It was common ground that the portion of O'Briens Road from the intersection with Cooma Road to Chainage 690 is constructed as a Type 1 road. I accept the evidence of Mr Osgood, which was confirmed on the vie, that past that point O'Briens Road is unformed; and comprises generally two wheel tracks within the road reserve; and that at low points, storm water can pond within the wheel tracks.
30Mr Osgood's evidence that the road is presently trafficable by a twowheel drive vehicle was confirmed by the access available during the view. I accept Mr Osgood's evidence that the road surface is affected by weather, and that consistent traffic across areas where storm water has ponded within the wheel tracks would deepen those tracks and create potholes or ruts. Mr Brian Bopping's evidence was that he is aware of this, and at times he exercises common sense and may choose not to drive on the road. I accept the evidence of Mr Osgood that the relevant part of the road is not capable of being travelled safely by a twowheel drive vehicle in all weather conditions.
31I am satisfied that the erection and occupation of a dwelling house on a property that has not been used for residential purposes since 1980 will increase the use of that section of O'Briens Road from the entrance to the site to Cooma Road. Mr Osgood's evidence that the typical traffic volume generated from a single dwelling lot for the location of the site would be up to seven vehicles a day was not challenged.
32The applicant submits that the road is currently trafficable by twowheel drive vehicles and only requires some maintenance in the form of extra gravel to address the normal wear and tear on the road by the residential use. In the applicant's submission, the road meets the requirements of cl 21(2)(c)(i) of the LEP now, and addressing normal wear and tear is a matter for which the Council should be responsible. The applicant submits that the imposition of a requirement that the applicant pay to have the road upgraded either to the standard of a Type 1 road, or to the more limited upgrading contemplated by the redrafted condition 20, would not be reasonable, relying on the test in Newbury District Council v Secretary of State for the Environment [1981] AC 578.
33The Council submits that the objectives of the LEP, and in particular the objectives of the 1(a) zone, are relevant, and that this includes that the development minimise the cost to the community of "fragmented and isolated development of rural land" and "providing, extending and maintaining public amenities and services", which would include roads. The Council relies on cl 21(2)(c)(i) of the LEP, which requires that it be satisfied there will be "adequate coinciding legal and practical vehicular access available to the dwelling house", and also on cl 3.5 of the DCP that "practical access" means "capable of being travelled in safety by a twowheel drive vehicle". The Council accepts that the road is used by others for agricultural purposes, and submits that with the erection of a dwelling house on the site, the only person who would benefit from any upgrading is the applicant. A Type 1 road is the lowest standard of road. The Council relies on the provisions for access in Section 1 of the DCP, acknowledging that while the section is headed "Subdivision", nonetheless submits that the provisions address developments more generally. The Council accepts that the cost of upgrading the road is high, however, submits that that is because of the location of the land, and that the cost goes with building a dwelling house in a location with limited access.
34The question of whether any of the other properties on O'Briens Road would also be an "existing holding" so that there would be the possibility of consent being sought for the erection of other dwelling houses, was raised during the course of the proceedings. The applicant submits that that possibility does not alter the position that there are already other users of the road, so that it is unreasonable to impose the costs of the upgrade on the applicant. The Council submits that even if other properties are existing holdings, the application should be assessed on the basis of the current use, as there is no indication of other applications and in any event there may be new planning controls that might alter the position for the existing holdings.
35The Council has confirmed that its records indicate that in addition to the two lots owned by the applicant which are an existing holding, the property further to the east with the recently constructed entrance and caravan, and two lots (being Lots 344 and 349) owned by Mr Brian Bopping, are existing holdings. On the Council's records other lots in the area are of a size that would permit the erection of a dwelling house under the provisions of cl 21(2)(a) of the LEP in any event. The Council's records also indicate that apart from this present application there is no development application currently pending for the erection of a dwelling house on any of these holdings.
36The most recent judicial consideration on the issue of the imposition of a condition requiring an applicant to carry out work relating to public amenities or services is that by the Court of Appeal in Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308, which concerned a condition requiring a developer to place underground all service cables in the street adjacent to the proposed development. This was a requirement of the applicable development control plan. The Court of Appeal held that the condition, properly construed, was validly imposed under s 80A(1)(a) of the Act, which permits a consent authority to impose a condition on a development consent if it relates to any matter referred to in s 79C of relevance to the development the subject of the consent.
37Basten JA noted (at para [9]) that there may be a question as to how distant, remote or indirect the relationship may be between the proposed development and the matters referred to in s 79C(1). The Court of Appeal considered the test in Newbury , namely that a condition can only be imposed for a planning purpose, must reasonably and fairly relate to the development and must not be so unreasonable that no reasonable authority could have imposed it. Basten JA (with whom Macfarlan JA agreed) noted (at [7]) that the issue is not so much whether that test applies but rather what it requires. In relation to the third element of the Newbury , namely reasonableness, Basten JA held:
15 Thirdly, an exercise of discretionary power may be capable of challenge as manifestly unreasonable, in the Wednesbury sense. However, that assessment will usually involve a comparison of the condition imposed with the scope and operation of the power being exercised. In circumstances where the condition must, for the purposes of the first test, be reasonably related to the purposes for which the power may be exercised, the practical significance of this test may be limited to cases where the severity of the burden placed on the applicant is disproportionate to the consequences attributable to the proposed development. Thus, whereas it may be reasonable to impose on a developer of a significant subdivision an obligation to contribute to the cost of upgrading a dirt road to a sealed road, it may not be reasonable and appropriate to include the expense of expanding the road from two lanes to four: see Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386 at 388 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ agreeing) in relation to a legitimate upgrading condition. Even where the expense sought to be recovered is thus disproportionate to the costs of a reasonable level of upgrading, there would, in all likelihood, be an available challenge on the basis of an improper purpose, under the first or second principles set out above.
38In this matter I agree with the Council that the provisions of the LEP are relevant under s 79C(1)(a) of the Act, in particular the zone objective (c) and the requirement in cl 21(2)(c) (i) that the Council may only grant consent to the erection of a dwelling house on land in the 1(a) zone, that is an existing holding, if it is satisfied that there will be adequate coinciding legal and practical vehicular access available to the dwelling house.
39There was no dispute that there is legal access. I accept the Council's position that practical access means capable of being travelled in safety by a twowheel drive vehicle. In circumstances where present safe access by a twowheel drive vehicle is dependent on weather conditions, and the proposed development will increase the use of the road, I am satisfied that it is reasonable to impose a condition requiring work on the road to ensure that practical vehicle access is available to the dwelling house as required by cl 21(2)(c). That others presently use the road for agricultural purposes would not preclude such a condition being imposed: Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39, at [10]. The imposition of such a condition would be consistent with the view taken by Bly C in Ferguson v Dungog Shire Council [2006] NSWLEC 459, on which the applicant relied. While both those decisions concerned a subdivision of land, the common element with this application is that the work required is reasonably related to the development.
40The next issue to consider is whether it is reasonable to impose such a requirement in the form imposed by the Council originally as condition 20. The Council relies on the provisions of the DCP, in particular cl 2.11 which specifies a Type 1 road as the minimum standard for private access road to an individual lot. That provision is located in the provisions relating to Subdivision, and there is no specific provision relating to dwelling houses in that regard in the DCP. It is not necessary to decide whether or not the Council has, as submitted by the applicant, applied this provision of the DCP inappropriately. The evidence before me is that while a regrading and resheeting of the road surface and the provision of table drains and culverts to control and facilitate storm water run off would be an ideal solution, achieving safe practical access would not necessarily require such work to be undertaken. Mr Osgood's evidence was that a more limited reshaping and resheeting and formalising the water course crossing (in the form proposed in the draft condition 20 tendered by the Council) would provide adequate all weather access, and also that more minor work placing additional gravel would achieve that by addressing immediately apparent potholes and dips. While I accept Mr Osgood's evidence that this latter response would not provide as good an outcome as either condition 20 in its present form or in the alternative form, and would require future work to fill other areas that might develop, on Mr Osgood's evidence ongoing maintenance would also be required for a reshaped and resheeted road surface.
41I am satisfied that it is reasonable to impose a condition requiring the applicant to do the work required to upgrade O'Briens Road between Chainage 690 and the entrance to the site by the supply and placement of gravel as discussed by Mr Osgood in his oral evidence, which work he estimated would take up to one day and cost in the order of $5,500. I am also satisfied that it is reasonable to require some work to be undertaken on the culvert over the creek crossing referred to above to ensure all weather twowheel drive vehicle access, estimated by Mr Osgood in his oral evidence to cost in the order of $7,000 to $10,000. This work would, on the evidence before me, upgrade the relevant section of the O'Briens Road to a standard that would enable safe all weather access by a twowheel vehicle to the site.
42I note that this conclusion relates to the development the subject of the present development consent and modification application, and is based on the evidence before me as to the increased usage likely to be generated by that development, and the evidence as to the condition of the portion of O'Briens Road leading to the applicant's property.
43Subject to a redrafting of condition 20 to reflect this conclusion and any consequent amendments required to conditions 22, 23, 24, 25 and 26, I am satisfied that the development to which the consent as modified relates is substantially the same development as that for which consent was originally granted as required by s 96(2)(a) of the Act. Having considered the relevant matters under s 79C(1) of the Act, I am satisfied that it is appropriate to modify the development consent by the deletion of conditions 21 and 27, the amendment of condition 52 as agreed now between the parties, and the amendment of conditions 20, 22, 23, 24, 25 and 26 to reflect my conclusions.
44The parties are directed to provide amended conditions to reflect the above findings, following which orders will be made in chambers.
Linda Pearson
Commissioner of the Court
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Decision last updated: 08 November 2011