Cospak International Pty Limited v Mulwaree Shire Council

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . (1) 0116 of 2002 Coram : Bignold J. 25 September 2002 COSPAK INTERNATIONAL PTY LIMITED

This is an appeal pursuant to section 96(6) of the Environmental Planning and Assessment Act 1979 against the Council's failure to determine the application for modification of a development consent granted by the Council on 22 September 1999 for the erection of a dwelling house on land known as Lot 226 Deposited Plan 750051 in the Parish of Turrallo located off Rhyanna Road.

The modification application sought the deletion of condition 4 imposed upon the grant of the development consent for the erection of the dwelling house. Condition 4 is a condition, the terms of which I will presently recite, pertaining to the question of access to the approved dwelling house from the system of public roads in the environs of the development site.

The development site forms part of a number of adjacent or adjoining parcels of land in the ownership of the Applicant. In particular, the Applicant owns Lot 227 which adjoins Lot 226 on its eastern and southern boundaries, and also owns Lot 6 in Deposited Plan 214249 which is situate and adjoining the eastern boundary of Lot 227. Lot 6 therefore is two properties removed from the development site upon which the dwelling house was approved, and I add has subsequently been built. Significantly, an existing public road known as Cowpers Road extends to the eastern boundary of Lot 6, where it terminates, and it is from Cowpers Road via an access track traversing Lots 6 and 227 that access is gained to the dwelling house erected on Lot 226.

As I have noted, Condition 4 of the development consent granted by the Council on 22 September 1999 imposed conditions relating to access arrangements to the development site. Originally, those access arrangements focused upon an unmade Crown road on paper passing by the northern frontage of Lot 226. The condition and allied conditions required the construction of that unmade Crown road, not only to the extent that it has frontage to the northern boundary of Lot 226, but obviously extending in a westerly direction to link up with the existing public road system situate in that locality.

Apparently, because of the expense involved in complying with those requirements, the Applicant sought and obtained from the Council subsequent to the grant of the development consent two modifications of the relevant conditions including Condition 4. Condition 4, as presently in force as a result of the Council's grant of the modification application granted by the Council on 27 April 2000, is expressed in these terms, and I take the words from paragraph 12 of the Statement of Agreed Facts, (exhibit A) which the parties have helpfully tendered. That statement covers the relevant history of the grant of the development consent for the erection of the dwelling house on Lot 226 and traverses the history of the modifications made to the conditions of that development consent including the various versions, as modified, of Condition 4.

Condition 4 reads as follows. The Applicants are either to consolidate Lot 6 deposited plan 214249 and Lots 226 and 227 of deposited plan 750051 in the Parish of Turrallo by a plan of consolidation so as to form one allotment, or create a caveat over Lot 6 deposited plan 214249 and lots 226 and 227 deposited plan 750051, so as to prevent their separate sale. Alternatively, Lot 6 deposited plan 214249 and Lot 227 deposited plan 750051 may be consolidated to form one lot and provide a right of way over the consolidated lot from Cowpers Lane end to Lot 226 of deposited plan 750051 so as to satisfy the provisions of the Mulwaree Local Environmental Plan 1995. A further alternative is to consolidate lots 226 and 227 deposited plan 750051 to form one lot and provide a right of way over Lot 6 deposited plan 214249 from the end of Cowpers Lane to the consolidated lot.

It will be seen readily that the condition gave a number of options to the Applicant in relation to the Council's requirements for access to the approved dwelling house site.

Before returning to the adjudication of the matter in dispute, I should note according to paragraph 13 of the Statement of Agreed Facts that the approved dwelling house was completed on or about December 1999. I should also note that on 28 December 2001 the Council commenced class 4 civil enforcement proceedings against the present Applicant, seeking a mandatory order that the present Applicant comply with Condition 4 of the development consent. Those proceedings have not yet been heard and by consent of the parties those proceedings await the outcome of the present proceedings involving the latest s 96 modification application made by the Applicant in respect of the conditions of development consent pertaining to access to the approved dwelling house. That application is for the deletion of Condition 4 in its entirety and for no provision to be substituted therefor.

Before the matter came on for hearing today, correspondence had passed between the parties' Solicitors concerning the operation on the present facts of the provisions of the Mulwaree Local Environmental Plan 1995. In particular, the Council's solicitor in his letter to the Applicant's solicitor had noted the provisions of clause 19(5) of the Local Environmental Plan which provides, "the Council shall not consent to the erection of a dwelling house on land to which this clause applies," (and I interpose the clause applies to the subject land being land contained within one or other of the zones specified in clause 19(2)) "where access is by way of a right of carriageway which serves or is capable of serving any other portion or allotment of land other than that on which the dwelling house is to be erected."

On the hearing of the case today, I was informed by the Council's Solicitor that the Council's case for maintaining Condition 4 is not dependent upon the application to the facts of the present case of cl 19(5) of the Local Environmental Plan.

I have been considerably assisted in my adjudication of the present dispute by the written submissions that were filed on behalf of the parties. Those written submissions have been supplemented by further submissions received today, and I am grateful to the parties' legal representatives for the assistance that they have provided.

As I have just mentioned, ultimately the position advanced by the Council was that the condition requiring proper physical and legal access from a public street to the approved dwelling house site was sustainable on conventional planning grounds and was not dependent upon the particular provisions of the Mulwaree Local Environmental Plan.

I should however mention, because it obviously was relevant when the Council granted the development consent to the erection of the dwelling house and imposed the original condition 4 on that consent, that cl 19(3) of the Local Environmental Plan relevantly provided - the Council may consent to the erection of a dwelling house on land to which this clause applies only if no dwelling house is erected on the land and the land: …………………. …………………... (c) comprises the whole of an existing holding and the Council is satisfied that:

(1) there will be adequate coinciding legal and practical vehicular access available to the dwelling house.

No doubt it was that particular provision that informed the Council's decision when granting the development consent, to impose Condition 4 in its original form.

Now that the issue between the parties has been illuminated by the Council's proper concession that its defence of Condition 4 is not mandated by any of the provisions of the Local Environmental Plan but depends upon conventional planning principles and the exercise in particular of the discretion conferred upon the Council as a consent authority under the Environmental Planning and Assessment Act, ss 79(c) and 80(a) I think that the dispute is readily resolvable and that the resolution of the dispute is one that appropriately recognises the fact that whilever the Applicant owns the two lots situate to the east of Lot 226 (that is, Lots 227 and Lot 6 aforesaid) over which two easterly lots the access track from the terminus of Cowpers Lane at the eastern boundary with Lot 6 passes to the lot upon which the dwelling house has been erected, 226, the reasonable requirements for access, both physical and legal, to the approved dwelling house site are satisfied.

However, the real problem with the existing arrangements is that there is no guarantee that they will continue into the future. It is obviously possible that either or both of the easterly lots (227 and 6) may be sold, in which event there would be no guarantee of access via Cowpers Road to the development site unless suitable arrangements were made in that behalf upon the sale of either or both of those lots.

Accordingly, Condition 4 as it stands imposes an obligation greater than the present situation requires and the obligation is, in my view, onerous in terms of requiring consolidation of lots, creation of rights of way and the like including, as one of the options, the lodging of a caveat on some or all of the titles to the three lots involved. As I say, whilever the lands are held in the same ownership, the existing access arrangements are, in my judgment, perfectly satisfactory. However, planning decisions in relation to developments also necessarily assume future dimensions and contingencies and in that respect I am of the opinion that it is appropriate for an obligation to be cast to guard against the future change to the present satisfactory arrangements, and in that respect an appropriate condition should, in my judgment, be imposed.

I pause now Mr Ayling to ask this of you. Having regard to the fact that the application is for the deletion simpliciter of Condition 4, and having regard to what I have said in my reasons for judgment, that I am of the view that an appropriate substitute condition fairly dealing with both the present situation and future possible situations is justified, before imposing a substitute condition, I would need would I not to obtain ultimately, an acceptance on the part of your client to the substitute condition? AYLING: Yes, I think your Honour has to do that. There has to be agreement if some other condition is to be imposed or some step is to be taken in the resolution of the section 96 proceedings which does not exactly reflect the application. That's my understanding, the Benelup principle. Obviously I have no specific instructions but I think--

HIS HONOUR: So it's appropriate then is it for me to either propound the type of condition that I think is appropriate or to leave the matter to the principles that I've enunciated and invite the parties to bring in short minutes to give effect that decision, which would necessarily include an acceptance by the Applicant of a substitute condition. Would that be appropriate?

AYLING: That would be appropriate. I think the latter of the two propositions would be best, with respect, your Honour, because there are a number of different ways in which the matter could be approached.

HIS HONOUR: Thank you, Mr Ayling. Mr Astill, have I thus far sufficiently articulated the principle upon which I have expressed the view that a condition should be imposed?

HIS HONOUR: I don't need to spell out a type of condition that would satisfy the principles? I agree with Mr Ayling that if I were to do so, I think it might be unnecessarily restrictive in terms of the parties' capacity to propound an appropriate condition. If you're happy with that latter, I think I would prefer the latter, leave it to the parties.

HIS HONOUR: Thank you, Mr Astill. Mr Ayling, appropriate?

With the benefit of further submissions from the parties' legal representatives, I am of the opinion that the appropriate way in which the appeal should formally and finally be concluded is to invite the parties to bring in short minutes to give effect to the decision that I have indicated I would regard as the appropriate solution and resolution of the particular case. I think that course is the prudent course to adopt, rather than for me to attempt to formulate the type of condition that would satisfy the principles that I have laid down.

To recapitulate for the benefit of the parties, the condition is one that serves two purposes. One, it acknowledges the appropriateness of the existing arrangements whilever the three lots in question are in common ownership, and that acknowledgment can be expressed in the substitute condition that I will be prepared to impose in substitution for the existing Condition 4. That is not the primary purpose of the condition however, and the primary and second purpose of the condition is to ensure that in the event of the existing arrangements, to wit, the unity of title and ownership vested in the one person in the three lots in question, changing for whatever reason, that an appropriate means of creating legal and physical access to the approved dwelling house on Lot 226 be created, and I leave it to the parties to formulate the appropriate style of that creation.

I order that the exhibits remain with the Court papers, and I will have this judgment reduced to written form to be made available to you both as soon as convenient. My formal orders therefore on the publication of those reasons for judgment will be to invite the parties to bring in short minutes to give effect to my reasons for judgment.

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