Howes v Ballina Shire Council

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr S. Priestley, solicitor of Pickering Priestley

RESPONDENT Mr P. Lalich, solcitor of Allens Arthur Robinson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10640 of 2007 Margaret Howes v Ballina Shire Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This judgment is for an appeal under section 97 of the Environmental Planning and Assessment Act, 1979 against a condition imposed by Ballina Shire Council on a development consent for the construction of a gravel access road within the council's dedicated public road.

2 The applicant has appealed the condition of council that reads "the road should be generally in the alignment of the existing track". The applicant submitted with the development application a survey of where it considered it appropriate to construct the road. This is further from the creek on slightly higher land than the tract although generally the area can be described as of little topographic relief but the proposed access way that the applicant showed in the survey plan with the development application takes advantage of higher land. 3 The central issues in the proceedings is the alignment of the road. The council contends it would be a more efficient utilisation of the road reserve to accommodate as many uses as possible.

4 I note that the council in the Statement of Contentions makes the following comments. that the subject conditions imposed by the council are reasonable and appropriate as they promote the efficient utilisation of council owned land consistent with the objects of the Environmental Planning and Assessment Act. The efficiencies that are promoted by way of the approved existing alignment include that the road reserve continues to be maintained by local farming interests and the growth of weeds and exotic vegetation is managed at no public cost. 5 In the circumstances of this case, having the carriageway aligned closer to the creek, allows for the continued use of approximately one hectare of land for agricultural purposes. Council goes on to say that: "the current alignment leaves more land in the road reserve open for utilisation for other purposes than the alignment proposed by the applicant. This more equitable outcome can be achieved while maintaining reasonable and appropriate access to the applicant's land". "The existing carriageway alignment can demonstrably meet the reasonable needs of the applicant as it has been used for many years for access and farming generally in an incident free manner... "There is essentially no requirement for the council that the applicant upgrade the existing track for access purposes. The existing track already provides a serviceable driveway and can continue to be used in its current state. In all the circumstances, the approved existing road alignment allows for the efficient utilisation of the land within the road reservation". 6 The Court met on site and heard from the applicant in the proceedings, Ms Margaret Howes, who owns the property being lot 4, which is number 320 Moylans Lane. She provided evidence to the Court in terms of photographs of 10 November where there had been a flash flood and the road was covered in water. The existing track was covered in water for some two days.

7 On behalf of the council, Mr Rod Willis, Manager of the Regulatory Services Group, gave evidence to the Court as did Mr David Kelly, Council's Infrastructure Planning Manager. Mr John Elliott, the owner of the adjoining farm at the property known as 113 Reedy Creek Road, also gave evidence to the Court. He owns 200 acres and his property adjoins the public road and, as such, he has planted crops and in the past sugarcane over part of the dedicated public road and he seeks to continue to be able to utilise this portion of the land and he objects to the new road alignment proposed by the applicant stating that he also maintains the road verges on noxious weeds et cetera. 8 It is important to note that there is no other legal access to Ms Howes' property at lot 4, except over this dedicated public road which is between the creek and the land owned by Mr Elliott of lot 3. I note that Mr Elliott advised the Court that the property at lot 4 can gain access over his land during periods of heavy rainfall and flooding and his land is higher than the public road. On the site inspection the Court was taken to observe this part of his land, however, he is not prepared to grant an easement in favour of the applicant and it would only be an informal arrangement. Clearly without a formal legal entitlement this would provide for no certainty to the owner of lot 4 for access.

9 It is also interesting to note that the owners of both lot 3 and lot 4 sought to purchase the dedicated road or part thereof from the council. However, council declined to sell or part of it or close the road. The owner of lot 3, Mr Elliott, has also applied to the council to lease part of the dedicated road.

10 The council also contends that the public interests should be considered and outlined to the Court in exhibit 4 the number of unformed roads within the Shire, in particular the East Ballina area. Council submits it would be a tremendous cost to the council to have to maintain these roads in terms of noxious weeds et cetera. As such, the council contends that it is more efficient to maintain the road or the track in its current location than for it to be moved to the applicant's preferred location. 11 It is noted that the applicant proposes to construct a gravel road, to a higher standard than the existing track to provide better access to her property. I also note that council approved the dwelling house, that is relocated heritage home, on the subject lot 4 and clearly such approval could only be granted if there was legal access from a public road or an easement in place over private property to provide access.

12 The Council contends that in the public interest the existing track should be resurfaced as opposed to the construction of a gravel access road in the location proposed by the applicant. However on the question of public interest one must consider first and foremost this is a public road and it is not simply a matter of favouring the land owner who grows sugarcane on part of the road to then determine the preferred location. This should elevate the cane farmers interest above the public interest if not consideration is given to locate the road that provides for effective utility. 13 I note the road alignment is considerably wider than most dedicated roads and that could be in part because of its location adjacent to the Creek which floods from time to time.

14 For the matter of precedent public interest; I refer to the judgment of Goldin v Minister for Transport, a judgment of his Honour, Lloyd J in (2002) NSWLEC 75 of May 2002. In the circumstances of the matter before me I do not consider that the approval of the road on the alignment proposed by the applicant would be an undesirable precedent. Clearly public roads have a purpose and it is more efficient and less costly to construct roads where they are subject to less inundation from flash floods, flooding and heavy rainfalls than on lower ground. And, indeed, Mr Kelly for the Council stated that Council's standard would be to provide where possible all weather access. Clearly the difference in level will not provide for access during all rain and flood events but even if it provides for marginally greater flood free access on a public road then the location of the road should be, where it provides for the increased access and this would be in the public interest. 15 This consideration is also heightened having regard to condition 1.10 requiring maintenance by those who use the road to serve their properties. The new gravel road will be available to a number of properties not just Lot 4.

16 With respect to the maintenance of unmade roads in the Shire and their verges, by adjoining farmers and whether they utilise the land for farming is not, in my assessment, put at risk by approval of this development application. The other side of the equation is in terms of the fact in the circumstances of this case there is no cost of the construction of the newly aligned public proposed road to the Council.

17 I note that at the end of the proceedings the applicant did not consider condition 1.10 in the council's conditions to be appropriate. However, at the same time, it was not pressed by the applicant for this condition to be deleted. It was raised late, mainly in response to when Council sought to have a covenant imposed for the maintenance. 18 I say nothing about the appropriateness of condition 1.10 or its legality as such on the requirement for the users to maintain the dedicated public road. As I stated, it was raised later in the proceedings and was not the subject of the original appeal. The proposed covenant by the Council was also in terms of the maintenance of noxious weeds in dedicated roads throughout the Shire. If the applicant in the future seeks to amend condition 1.10, then it could do so in a separate application. This would allow the parties to consider their respective positions at that time. As I stated, at the end of the day the applicant opposed the covenant. Whilst I do not say anything about its appropriateness or reasonableness the condition remains and it is matter left to another day if the applicant wishes to pursue same.

19 However, in terms of the covenant, this is not appropriate. My reasons are that the access is on a dedicated public road, not private land and the covenant could not be imposed on the title of the applicant's land or in fact council no doubt would not have a covenant over its own land which is the public road. Furthermore, as a dedicated public road, the Council as owner has certain obligations and these are articulated in various Acts, including the Roads Act that requires consent for works in, on or over a public road or to dig up or disturb its surface. 20 Bu way of comment only and this is matter for council on the extent of unformed public roads in the Shire and whether Council conducts a study of those roads required for legal access and those that could be appropriately closed. That is not a matter for me in these proceedings.

21 The important thing is the merits of this development application and in terms of public interest I am not persuaded that the public interest is served by what council calls an efficient use of the roadway. Efficient use of the dedicated public road must be first and foremost provide access. In terms of the objects of the Act, I am satisfied that the proposed alignment that the applicant has shown in the plan also meets the objects of the Act in terms of orderly and economic development. 22 The Court understands the concerns of the adjoining owner, Mr Elliott. But, at the end of the day, I must assess the merits of this application and the fact that he has benefited by the growing of sugarcane and/or other crops over some one to two hectares of land may be in fact a bonus. The applicant questioned the legality of growing crops on a dedicated public road in terms of s 38 of the Roads Act or the need for a lease. That is not a matter that I need to comment on in these proceedings.

23 The Court heard from Mr Willis. Mr Willis originally recommended that the application be approved by the council but has now reconsidered and on the basis of further matters that were put to him, he considered that it would be in the public interest and the efficiency of the road that it be on the current alignment of the track. He also provided a supplementary report to the council and the supplementary report to the council did in fact highlight a number of issues. In terms of the environment, he stated in the March 2007 report that: "The natural environmental would be equally affected by any of the options though it would be generally preferable to keep the track away from the waterway". 24 He also commented on social aspects and "The interests of the applicant are better served by the proposed alignment and construction standards than by the current alignment in terms of it being a safer distance from the water, ease of access and flooding frequency." 25 He also stated under social concerns that the interests of adjoining land users may be better served by being able to continue farming and living in the area in the way they have for many years. The council has responsibility to facilitate reasonable and proper vehicle and services access to rural properties so that they can be lived in and operated purposefully. He also stated in his supplementary report that it would be unreasonable to refuse the proper use of this road reserve servicing the applicant's land: "Such may lead to an appeal against the refusal and consequently the expenditure of public moneys". 26 In terms of information, he also noted in his report: "The applicant's proposed alignment would provide better long term options for future public works". 27 In terms of his further report to the Court and his evidence to the Court on the day, Mr Willis considers that it would be a more efficient utilisation of the road reserve to accommodate as many uses as possible. However in my assessment I conclude that a dedicated public road has a specific and primary purpose and generally this is not to accommodate as many uses as possible. Council also, as I stated, has obligations in terms of dedicated public roads.

28 As I stated by way of comment, the council may choose given the extent of unformed roads and the fact that they may not all be required, to further assess its position and to formulate its position in terms of a policy on the unformed roads. I am not persuaded that the approval of the applicant's proposed road alignment would be an undesirable precedent. The circumstances of this case are clear in that the preferred alignment is on less flood liable to water inundation that must be given consideration. 29 Whilst the access track has been in existence for many years and may have served its purpose, it would appear from the evidence to the Court this has been mainly for farming equipment and clearly the applicant now seeks to live on the property which is accessed by a public road and to that extent the public road track upgraded must be utilised to serve this purpose. Clearly the state of the access track as we saw on the view was one that would not be considered by all to be an appropriate level of access for a dwelling house as now erected on the subject land.

30 In terms of the conditions, the conditions are as generally agreed to between the parties apart from the major issue in contention which is the alignment of the road. In terms of condition 1.4, it was agreed between the parties that this should be deleted. That is that the power lines be installed three to five metres from the eastern edge is deleted. The condition 1.3 now reads as proposed by the applicant and will now read: "The road carriageway shall be constructed generally along the alignment of the survey diagram prepared by Don Taylor & Associates Consulting Surveyors as annexed to the development application". 31 The other condition that was discussed but not pressed by the applicant to be deleted is 1.10, on the maintenance of the gravel access road from its intersection with Moylans Lane, Reedy Creek Road by the owners of the land served by that access. Clearly it could be seen on the view that there is a probability of other development within the area occurring and therefore increasing the demands on this road. As such in the future when there is further development it should not be the responsibility only of the applicant in terms of the 720 metres length thereabouts of road that is the subject of this development application for it to be maintained solely by this applicant. As I said, the condition is one that the applicant may wish to seek to have amended at a further stage and it is not pressed for my consideration in these proceedings in terms of whether it be deleted. 32 In terms of s 138 of the Roads Act, the applicant raised the issue of the need for consent. That is a matter that will be the subject of discussions between the applicant and the council.

33 Accordingly, the formal Orders of the Court are: 1. The appeal in respect of part of the land known as Reedy Creek Road Patches Beach commencing at the end of Moylans Lane between lot 3 DP605355 and the creek to the entry of lot 4 DP605355 is upheld. 2. The development application number DA2006/602 submitted to Ballina Shire Council is determined by the granting of consent subject to the conditions contained in annexure A. 3. The exhibits are returned to the parties with the exception of exhibit 1 and exhibit A.

      J S Murrell
      Commissioner of the Court
      ljr

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