Fitton v Central Coast Council

Issues

1. Despite the amendments and provision of additional information, the parties were unable to reach agreement in the conciliation phase of the proceedings as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).
2. In their written submissions, the Respondent argues that the development application should be refused on the basis that: 1. There are inadequate arrangements for access to the site and that the precondition at cl 7.9 'Essential Services' of Wyong Local Environmental Plan 2013 (LEP 2013) is not satisfied. 2. The development application relies on the ROW to provide access to the development. That the ROW requires improvement, in a manner agreed by the engineering experts, for which the Applicant does not have owners' consent.

The site and locality

1. The subject site has a street address of 93 Vales Road, Mannering Park with a frontage of 18.29m and an area of 3,307m².
2. The site adjoins a foreshore reserve with frontage to Lake Macquarie and enjoys picturesque views of the foreshore and waterway.
3. Currently a single storey dwelling, and detached garage occupy the site.
4. The land has the benefit of: 1. A right of carriageway and easement for services over Lot 200 in DP 1005985. 2. An existing development consent (DA/2095/02 for a three-lot Residential subdivision.
5. The terms of the ROW are those set out in Sch 8, Part 1 Right of Carriage way of the Conveyancing Act 1919. The terms provide as follows: Full and free right for each person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any part thereof.
6. The first section of the ROW from Vales Road is approximately 7m wide and variable 57.8m long (Section 1 ROW). The remainder of the ROW that adjoins the site is 3m wide and approximately 60m long (Section 2 ROW). The ROW is not proposed to be altered or amended by the proposed development application. Following is an extract from DP 1005985 indicating the ROW: Figure 1:Extract of Deposited Plan
7. The subject site is identified in the following extract: Figure 2:Aerial of locality Source: https://maps.six.nsw.gov.au/

Public Submissions

1. The development application was notified to adjoining property owners and exhibited for a period of 21 days in accordance with the requirements of Wyong Development Control Plan 2013 (DCP 2013). As a result of the notification process two submissions were received. The concerns raised in submissions received can be summarised as follows: 1. The proposed dwelling gains access from a 3m wide driveway [ROW] which is an insufficient width to allow access for emergency vehicles or the passing of vehicles. 2. There have been issues with access for vehicles using the ROW in the past and/or vehicles blocking the ROW. This will be exacerbated by an additional dwelling as proposed in this development application. 3. Concern about the impact to the ROW by the construction process and concern as to allocation of responsibility for any subsequent repair or rectification of damage. 4. That during construction the increased usage of the ROW will make access for the rest of the residents very difficult due to congestion. 5. That parking is an ongoing issue for the five properties that utilise the existing driveway/ROW access. That many vehicles park 'illegally' which impedes visibility and the use of the ROW. 6. That the subject lot has direct access to Vales Road, which should be utilised to facilitate vehicular access to the proposed dual occupancy. The additional development should not rely in the ROW. 7. That the construction of an additional dwelling, relying on the ROW for access, is an overdevelopment of the site. 8. That the proposed dwelling with obstruct the adjoining properties views to the foreshore and Lake Macquarie. (Exhibit 2)
2. As part of the proceedings, the Court undertook an onsite view and heard from a number of residents about their concerns with the proposed development. Those concerns mirrored the preceding issues detailed in the written submissions. In determining the development application, I have read and considered the submissions received by the public: s 4.15(1)(d) of the EPA Act.

Planning Evidence

1. The Court was assisted by town planning experts, Mr Tim Shelley for the Applicant and Ms Emily Anderson for the Respondent. The joint report of these experts was tendered as Exhibit 3 in the proceedings.
2. The outcome of the planning joint conference was an agreement on the following issues that were previously in contention. This agreement was reached through amendments to the architectural plans, now in Exhibit C, or agreed conditions of consent. The following contentions are resolved:

• Inappropriate bulk and scale of the new dwelling.
• Compliance of the new dwelling with the 7m maximum ceiling height control in DCP 2013.
• Inadequacy of the proposed landscaping.
• Integration of the new dwelling with the existing dwelling on the site.
• The potential for the new dwelling to impact privacy for adjoining properties.
• Inadequate articulation of the proposed new dwelling.
• Impact of the proposed new dwelling on the scenic qualities of the foreshore.
• Extent of proposed tree removal to facilitate the proposed new dwelling.
• Lack of replacement planting proposed by the development application.
• The location of the proposed stormwater infrastructure within the tree protection zone of the existing tree.

1. The planning experts were not required for cross examination. However, I have read and considered the evidence of the experts in determining the development application.

Traffic Engineers Evidence

1. The Court was assisted by traffic experts, Mr Navin Prassad for the Applicant and Ms Michelle Gilson for the Respondent. The joint report of these experts was tendered as Exhibit 4 in the proceedings.
2. The agreed evidence of the traffic experts can be summarised as follows:

• In accordance with the Transport for NSW 'Guide to Traffic Generating Developments' issued in October 2002, and the associated technical directions, a rate of 7.4 daily vehicle trips per dwelling is applicable when considering traffic impacts from low density residential dwellings. The experts conclude that 'accordingly the introduction of a second dwelling utilising Section 2 ROW will represent an increase from 7.4 to 14.8 daily trips, being a 100% intensification on the existing usage.' They also note that Section 1 ROW will experience a 20% increase in usage intensity. (Exhibit 4)
• That the proposed development will not increase the usage of the ROW over that approved in the existing subdivision consent. However, that consent required the addition of a passing bay to Section 2 ROW as per the marked up approved plans. Such a passing bay has not as yet been constructed.
• That whilst is accepted that a legal access across the ROW for the proposed development has been established (thus 'available'), the experts agree that the current access is not adequate.
• That Section 2 ROW, with a width of 3.0m and 2.5m of pavement, does not comply with: "- NSW Fire and Rescue 'Fire Safety Guideline - Access for fire brigade vehicles and fire fighters', - NSW Fire and Rescue 'Fire Safety Guideline - Fire hydrants for minor residential development', - Section 4.5.2 of Council's DCP Chapter 2.3, and - AS2890.1 for width, clearance and manoeuvring." (Exhibit 4)
• That it has not been demonstrated that vehicles can pass within the ROW and that the existing pavement is adequate enable use by a single vehicle. (Exhibit 4)

1. During the expert conference, Mr Prasad proposed some works to the ROW in the form of the TSS Concept Access Plan. The plan was subsequently annexed to the joint report.
2. The concluding remarks of the engineering experts is extracted below (emphasis added): "6.1.1 Navin Prasard's Position summary - it is NP's view that: a) The existing ROW in its current form with the addition of only a passing bay has been approved for the vehicular access for the enacted approved DA (DA/2095/2002) and is in accordance with Council's DCP Ch 6.9 for access for the 3 approved lots. b) The traffic generation of the subject development is the same as the traffic generation that would exist with the completion of the approved subdivision. c) Notwithstanding the above, section 2 of existing ROW does not comply with the current standards for access. d) The proposed TSS Concept Access Plan, although unconventional provides a solution which enables the intent of the standards for access to be achieved. e) The development application could be approved with consent conditions outlining the TSS Concept Access Plan works to be constructed. 6.1.2 Michelle Gilson's Position summary - it is MG's view that: a) The existing arrangement is agreed as being unsuitable for access to a new dwelling to today's standards, guidelines and practices. b) The proposed TSS Concept Access Plan offers and unconventional (by today's standards) solution to achieve a minimum ROW and pavement width (total, combined) suitable to alleviate all manoeuvrability and access issues of resident and emergency vehicles. c) It is noted the proposed solution is a deviation from current accepted urban property access engineering design standards, guidelines and practices, and should be recommended not to be made an accepted engineering design precedent for any future development, d) The development application could be approved with consent conditions outlining the TSS Concept Access Plan works to be constructed." (Exhibit 4)
3. The question of whether the Applicant has the legal right to undertake the works to the ROW identified in the TSS Concept Access Plan was the subject of legal submission, which are summarised later in the judgment. However, it is agreed between the parties that the owner of Lot 200 DP 1005985 (95 Vales Road) has not given consent to the lodgement of the development application.
4. The experts were not required for cross examination. I have read and considered the evidence of the experts in determining the development application.

Is suitable vehicular access available, or have adequate arrangements been made?

1. The parties filed an agreed set of conditions that, subject to the following submission of the parties, would apply should the Court grant consent to the development application. Those conditions include the following deferred commencement condition: "Deferred Commencement The consent does not operate until the following have been satisfied: a) Provide evidence that the necessary development consent to enable use of the right of carriageway (ROW) on Lot 200 in DP 1005985 for access to the dual occupancy (detached) from the ROW and to enable the works within the ROW as identified on the Traffic and Safety Solutions Plan Rev C dated 15 March 2022 and titled "Proposed Access and Driveway Amendments" to be carried out. Evidence must be produced to the consent authority sufficient to enable it to be satisfied that above condition (a) has been complied within 5 years of the date of this approval, otherwise this consent will lapse." (Exhibit 5 as amended by agreed conditions filed on 18 March 2022)
2. During the conciliation, and at the commencement of the hearing, I expressed the following concerns to the parties as to whether it was appropriate to impose such a deferred commencement condition: 1. Whether the jurisdiction precondition in cl 7.9 'Essential Services' of LEP 2013 was met by a determination which incorporated the deferred commencement condition. 2. Whether such a condition could be imposed on the consent, which required work to the ROW, without the consent of the owners of the ROW (Lot 200 in DP 1005985).
3. Clause 7.9 of LEP 2013 states (emphasis added): Development consent cannot be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required- (a) the supply of water; (b) the supply of electricity; (c) the disposal and management of sewerage; (d) stormwater management or onsite conservations; (e) suitable vehicular access

Submissions

1. Both parties made submissions to the Court in relation to whether the precondition at cl 7.9 of LEP 2013 is met. Those submissions are summarised in the following.
2. Mr Fan's submissions on behalf of the Respondent are summarised in the following. His submissions address three key issues:

• Interpretation of the term 'suitable vehicular access' in cl 7.9 of LEP 2013.
• Whether intensification of the ROW requires development consent.
• The proposed deferred commencement condition.

Suitable vehicular access

1. The Respondent submits that the term "suitable vehicular access" in cl 7.9 of LEP 2013 comprises all of the following components: "5.1 a physical method of access capable of suitably servicing the development; 5.2 a proprietary right or entitlement to traverse the land, either as a land owner (including by other land rights such as right of carriageway); and 5.3 regulatory permission to use the relevant land for the purpose that access will serve." (Respondents written submissions, 1 April 2022)
2. Mr Fan argues that the Applicant is unable to demonstrate that 1 and 3 of the above components that collectively make up the term 'suitable vehicular access' in cl 7.9 of LEP 2013 are achieved. On the basis that the precondition is not met, the Respondent argues that the Court as consent authority does not have power to grant consent to the development application and must refuse it on this basis.

Intensification requires consent

1. The proposed development, dual occupancy (detached), relies on the ROW for access to it from Vales Road. The Respondent identifies that the Statement of Environmental Effects accompanying the development application states: "vehicular access to the site is proposed via a new driveway that connects to the right of carriageway easement outlined in the site plan". (Exhibit A)
2. Citing Huntington & Macgillivray v Hurstville Council and Ors [2004] NSWLEC 694 ('Huntington') at [26]-[27] and Opera Properties v Northern Beaches Council [2017] NSWLEC 1507 ('Opera Properties') at [117], Mr Fan submits that caselaw supports the position that if the use of an easement is intensified, development consent is required for that intensification.
3. That the Respondent relies on the agreed position of the engineering experts in the proceedings that the proposed development will result in the intensification of the use of the ROW. Mr Fan concludes that the development application will result in the intensification of the ROW which requires development consent. Further, he notes that such consent is not sought in the development application before the Court, nor has such consent been granted.
4. In the absence of a development consent to authorise the intensified use of the ROW, the Respondent says that the Court cannot be satisfied that suitable vehicular access is available for the development, or that arrangements have been made to make suitable vehicular access available. Mr Fan submits that the precondition at cl 7.2 of LEP 2013 is not satisfied.

Essential matter, should not be deferred.

1. Mr Fan submits that a requirement, such as that to obtain development consent for the intensification of the use of the ROW, should not be the subject of a deferred commencement condition as the provision of access is an essential part of the development which should not be left unresolved at the time of determination.
2. Finally, in relation to the term 'satisfactory arrangements' in cl 7.9 of LEP 2013 Mr Fan submits: "10. In relation to 'satisfactory arrangements', the Court would not be satisfied that any arrangements have been made. Given that further development consent is required to obtain items 5.1 and 5.3 above (including necessary owner's consent to such applications) there are simply no arrangements in place to make suitable vehicular access available when required. 11. Further, the respondent submits that the imposition of a deferred commencement condition would not satisfy the Court that "satisfactory arrangements" have been made for such access: see Opera Properties a [177] - [178]." (Respondents written submissions 1 April 2022)

The development application will not intensify the use of the ROW

1. Mr Pickup argues that the development application seeks consent for a detached dual occupancy, a permitted use in the zone, which will gain vehicular access from Vales Road over the existing ROW. He disagrees with the Respondent's assertion that the development application, whilst proposing a change of use from a dwelling house to a dual occupancy, will intensify the use of the ROW. Further, he disagrees that any intensification, if established, requires development consent.
2. Mr Pickup confirms that the Applicant does not seek any works within the ROW over Lot 200 in DP 1005985. He submits that the terms of the ROW enable the Applicant to utilise the existing driveway and the ROW for all purposes to all parts of the subject site.
3. In his submissions Mr Pickup makes the following submissions in relation to the relevant case law:

• That the decision of the court in Huntington can be distinguished from the current application. Firstly, on the basis that the development proposed was for shops and residential units over two lots, where only one lot of land that was the subject of the development application had the benefit of a ROW over adjacent land. Mr Pickup argues that the finding of Pain J that there was an intensification of the use of the right of way is understandable where the benefit of the ROW was being extended over additional land. In the current proceedings the whole of the subject site has the benefit of the ROW, distinguishing the current proceedings from the findings in Huntington.
• That the decision of the Court in Opera Properties can be distinguished from the current proceedings on the basis that: firstly, in Opera Properties a finding was made that widening of the ROW was required to service the development and those works were not proposed by the development application, and secondly, the level of new development proposed was significant. (Applicants written submissions 25 March 2022)

The existing ROW meets the requirement for 'suitable vehicular access'

1. The Applicant's primary submission is that suitable vehicular access is available and that it can be used by the Applicant to service the new dwelling at the rear of the subject site. Mr Pickup notes that the ROW has been in use by various property owners, for the last 20 years. Further, that owner's consent from their owners of Lot 200 is not required for the development application.
2. On this basis, the Applicant says the consent authority can be satisfied that suitable vehicular access is available to the development. The Applicant argues that cl 7.9 of LEP 2013 is satisfied and the Court has power to, and should, approve the development application. In their primary submission, the Applicant thereby argues that the deferred commencement condition (and in fact the works detailed in the TSS Concept Plan) is not required.
3. In response to the agreement of the engineering experts in relation to the TSS Concept Plan, the Applicant makes the following submissions: 1. No works are proposed to the ROW. The Applicant argues: "16. In terms of adequacy, the Engineering Experts agreed that subject to the work set out in the TSS Plan Revision C (Exhibit D), the access to the rear dwelling would be adequate. It is accepted that the TSS Plan does show two areas highlighted in pink which would necessitate upgrading by undertaking concreting of the identified sections within the ROW to provide a connection between the existing sealed concrete driveway within the right of way and the proposed passing bay within the Applicant's land. It also provided for a concrete section to enable the connection between the existing driveway in the ROW and the proposed new driveway to rear dwelling. However, those works are not proposed as can be seen from the Revision T plans (Exhibit C)." (Applicant's written submissions, 25 March 2022, 4) 1. That the proposed dual occupancy can gain access from the ROW, or alternatively the Applicant could "… undertake the construction of the required concrete sections as part of maintenance works in order to be able to fulfil the terms of the right of carriage way to give them full and free access to and from the site. On that basis the applicant says legal access is available, that the access is suitable, and that the owners consent of lot 200 is not required to this DA." (Applicant's written submissions, 25 March 2022, 4)

The deferred commencement condition

1. Mr Pickup submits that if the Court accepts the Respondent's position that either the use of the ROW will be intensified in a manner that requires approval, or that the existing driveway is not adequate without being upgraded, that these matters are addressed by the deferred commencement condition.
2. Further, Mr Pickup submits that the imposition of the deferred commencement condition fulfills the requirement for Court to be satisfied under cl 7.9 of LEP 2013 that adequate arrangements have been made to ensure that suitable access is available when required. That is, the access will not be required until such time as the consent becomes operative, which if the deferred commencement condition is imposed, will not be until the consent for the intensification of the use of the ROW. He notes that a failure to fulfill the deferred commencement condition would mean that the development (the dual occupancy) does not proceed and therefore the access would not be required.
3. In response to the Respondent's submission that the imposition of the deferred commencement would leave an essential part of the development unresolved at the time of determination, Mr Pickup makes the following submissions:

• The deferral of the adequacy of arrangements for essential services occurs regularly in relation to stormwater drainage. It is common for a development consent to be issued with a deferred commencement condition imposed requiring the creation of a drainage easement. Mr Pickup argues: "The Consent Authority assesses the planning merits of the proposed drainage disposal and then imposes a deferred commencement condition to obtain an easement. Notwithstanding that the easement is not yet obtain, a process is identified by the condition to enable the proposed arrangement to be in place when the stormwater concept design is required." (Applicant's written submissions 6 April 2022)
• That in a manner similar to the above stormwater example, the Court is able to assess the planning merits of the design put forward by the TSS Concept Plan. Mr Pickup notes that both experts that the works proposed in the TSS Concept Plan "… will result in an adequate and acceptable design for the access to the rear dwelling and will result in an improved access for other users". (Applicant's written submissions 6 April 2022)
• Further, Mr Pickup argues that the works in the TSS Concept Plan are specific, and the Court can be certain what works will be undertaken by the implementation of the deferred commencement condition.

1. In conclusion, Mr Pickup submits that the Court can be satisfied by the imposition of the deferred commencement condition that adequate arrangements have been made to make the access available when required. Further, the he submits the Court has the jurisdiction to impose the condition.

Findings

1. Pursuant to cl 7.9 of LEP 2013, to enliven the power to grant consent to the development application, I need to be positively satisfied that either:

• Suitable vehicular access for the development is available; or
• Adequate arrangements have been made to make vehicular access available to the development when required.

1. For the reasons that follow, I find I am unable to be satisfied that the precondition in cl 7.9 of LEP 2013, that suitable vehicular access for the development is available, is met:

• I accept and adopt the submissions of Mr Fan that the term 'suitable vehicular access' comprises the three components he identifies, refer to [29].
• The provision at cl 7.9 of LEP 2013 requires more than access, it incorporates a subjective term of 'suitable'. Thus, in my view, this requires an evaluative judgment of the appropriateness of the access.
• In these proceedings, the development application is for the purpose of dual occupancy development. I accept that the Applicant has demonstrated a legal right of access by the existence of the ROW, see [10]. However, I accept and adopt the agreed evidence of the engineering experts that the current access is not suitable for the purpose of the development application. Rather, the experts argue that the existing access is unsuitable for the proposed development (in particular Section 2 ROW) in the absence of the works detailed in the TSS Concept Plan.

1. I find that, consistent with the terms of cl 7.9 of LEP 2013, suitable vehicular access is not available for the development.
2. Further, I accept and adopt Mr Fan's submission that the criteria of 'adequate arrangements have been made' for suitable vehicular access is not met. My reasoning follows:

• The ROW Section 2 requires upgrade works to be suitable for vehicular access. Those works are defined in the TSS Concept Plan.
• The deferred commencement condition agreed by the parties requires the grant of development consent for the deferred commencement condition to be satisfied. Applying the following decisions, I find that such a condition does not meet the requirements of 'adequate arrangements' for the following reasons: 1. The 'development' for which consent is sought, and to which cl 7.9 of the LEP 2013 applies, does not include any work to the ROW: Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council (2020) 247 LGERA 221; [2020] NSWCA 137 at [33]; 2. The deferred commencement condition defers determination of a critical matter to post determination and leaves unresolved an essential part of the development consent: Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155 at [29]; 3. There is no guarantee that the consent authority, or the Court on appeal, would grant consent to the development application described in the deferred commencement consent. Further, such a grant of consent to such a development application may be conditional, or in different terms, to that which is currently defined in the TSS Concept Plan: Young v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191 at [46]; Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 [50-53]. 4. There is no certainty that a development application of the kind described in the deferred commencement consent could be made as the owner of Lot 200 in DP 1005985 is not the Applicant for this development application. Further, the Applicant notes in their submissions that they have not obtained owners consent for the works detailed in the TSS Concept Plan.

1. I am not persuaded that 'arrangements', beyond the determination of what works are required to the easement itself, have been made. In my view, to be satisfied by the precondition at cl 7.9 of LEP 2013, the consent authority needs to be persuaded that specific arrangements are in place for the provision of suitable access, and that these arrangements are adequate. At the highest, the Applicant's arrangements are defined by the TSS Concept Plan and the terms of the deferred commencement condition. Those arrangements require the formulation, lodgement (with the consent of the landowner) and approval of a separate development application. I am not satisfied that these arrangements are adequate to meet the test in cl 7.9 of LEP 2013 as they lack certainty.
2. For the preceding reasons, I find that cl 7.9 of LEP 2013 is not met and I am unable to be satisfied. As such, there is no power to grant consent to the development application and it must be determined by way of refusal.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application DA/190/2021 seeking approval for dual occupancy (detached) and associated earthworks and tree removal at 93 Vales Road Mannering Park is determined by way of refusal. 3. The exhibits are retained except for exhibits 1, A and C.

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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: 02 May 2022