Opera Properties v Northern Beaches Council & anor

The site and its context

1. The subject site is identified as Lot 3, 4 and 5 in DP124602, and the adjacent Boundary Street road reserve. The site encompasses a total area of approximately 77,292m², is an irregular rectangle in shape and has a 525m frontage to Mona Vale Road, and a 375m frontage to Boundary Street.
2. The site is identified in the following aerial plan of the locality: Source: Google maps
3. The intersection of Mona Vale Road and Boundary Street was closed between 2004 and 2006. Timber bollards and posts have been installed at this intersection to prevent vehicular access.
4. The adjoining Uniting Church Land contains a number of uses, including the main church complex, a preschool, a sport and fitness centre and a healing centre.
5. The site has frontage to Narrabeen Creek and the majority of the site is identified as Vegetation Category 1 or Vegetation Buffer on the relevant bushfire prone land map.

Background:

1. In 1999 approval was granted to the Uniting Church to construct a Church complex at 2 Boundary Road Warriewood. The original consent conditions on that approval required the dedication of the access from Jubilee Avenue through the site to Boundary Road to Pittwater Council as a public road (Exhibit G).
2. That condition of the consent for the Church complex was appealed by the Uniting Church. As part of the Court proceedings Consent orders were agreed that resulted in this consent condition being replaced by the requirement for the provision of a right of carriageway. (Exhibit R1)
3. Subsequently a ROW was registered within Lot 10 DP 5055 (the Uniting Church land) on 26 September 2002. It is an easement in gross in respect of which the body benefitted is the Council.
4. In November 2005 a variation to the easement was registered. The terms of the easement that were varied are: 1. Additional "authorised persons" were included in the variation (as detailed in paragraph 19), essentially delineating the users of the ROW; 2. The variation also amended the terms of the easement in relation to the erection of signage: and the body whose favour this easement is created shall erect at the eastern and entrance/exit of the right of carriageway on the eastern boundary of the land burdened by this easement, a notice in conspicuous position advising person of the limitations as to access over the right of carriageway hereby granted to the seven categories set out above. Such notices shall be erected and maintained at all times at the cost of the body in whose favour this easement is created. 1. And finally the variation expanded the terms in relation to the variation, modification or release of the ROW. The additional words are provided in italics. Pittwater Council PROVIDED however that if an effective alternative access to the approved dwellings becomes available, the owner of the land may apply to release the Right of Carriageway referred to in this plan and Pittwater Council may not withhold its consent if effective alternative access to the approved dwellings is available.
5. The current easement within Lot 10 DP5055 has the following terms: Full and free right for the body in whose favour this easement is created and every person authorised by it and falling within the definition hereunder of "authorised persons" to go, pass and repass at all times and for all purposes with or without horses or vehicles or both over land indicated herein as the servient tenement and for the purposes aforesaid "authorised person" shall be limited to:- 1. Pedestrian members of the public; 2. Persons riding horses; 3. Motor vehicles (but not trucks exceeding 8.2 tonnes in weight) towing horse trailers and actually being used for the purpose of horse transportation only; 4. Cyclists (but excluding motor cyclists); 5. Emergency vehicles; 6. Every person authorised by Pittwater Council for bona fide purposes in connection with this easement including the employees, agents, contractors and licensees of Pittwater Council; and 7. Owners, occupiers, invitees and all other visitors of and persons requiring lawful access to the Approved Dwellings. For the purposes of this clause "Approved Dwellings" shall mean:- (a) a maximum of 1 dwelling on Lot 2 in DP383009; (b) a maximum of 1 dwelling on Lot 1 in DP383009; (c) a maximum of 3 dwellings on Lot 5 in DP124602; (d) a maximum of 1 dwelling on Lot 2 in DP816070. as such lots are shown on the plans annexed and marked "C". No other persons other than authorised persons may use the easement without the owner of the land first obtaining approval in writing from Pittwater Council. (Exhibit R2, emphasis added)
6. Sometime in 2005-2006 access from Boundary Street to Mona Vale Road was closed to vehicular traffic. As a result vehicular connection to Boundary Street from Jubilee Road relied on the ROW.
7. In 2006 the owner of the subject site requested a rezoning to allow the land to be included in the Warriewood land release area, for the purposes of residential subdivision. On 18 April 2006 Pittwater Council resolved as follows: (1) That 120 Mona Vale Road, Warriewood be included in the Warriewood Land Release Area for the purposes of residential development; (2) That the applicant, his advisors and Council staff consult as to the land capability, the potential yield and securing access to the site; (3) That following (2) above that the applicant be invited to submit a formal masterplan application.
8. On 7 April 2008 Pittwater Council resolved as follows: That Council encourage the applicant, and the Uniting Church, the RTA and landowners of fronting Boundary Road including 120 Mona Vale Road to discuss possible alternative access from 120 Mona Vale Road to Daydream Street for the purposes of a potential future subdivision of 120 Mona Vale Road. (Tab 5, Statement of Environmental Effects, Exhibit A)
9. In August 2010 the applicant purchased the property known as 4 Boundary Street, with a view to providing alternative access to the site (Statement of Environmental Effects, Exhibit A).
10. In February 2011, a development application (DA) was submitted to Council for the construction of a new private road connecting Boundary Street to Jubilee Avenue, via 4 Boundary Street. The application notes that the cost of the road construction was $132,000 (in 2011 dollars).
11. In July 2011 a planning assessment report for this new private road was prepared for Council. The staff recommendation was for refusal of the application. This recommendation was based on grounds that its environmental impacts were unreasonable, the extent of cut and fill had adverse visual impacts, and the design and location of the road was not compliant with Ausroad standards for the function of a local road. The Council resolved as follows: 1. Council acknowledges that the applicant has proceeded to seek a resolution to access the site at 120 Mona Vale Road in accordance with Council resolution of 18 April 2006. Council acknowledges that the applicant has secured owners agreement to lodge an application for the development of the land; Given that owners agreement* to an access has been secured, Council is in a position to consider an overall Masterplan/ zoning to develop 120 Mona Vale Road and the area proposed for the road over 4 Boundary Street and 10 Jubilee Avenue, subject to submission of full detailed studies, reports and plans addressing environmental, infrastructure, hazard management, biodiversity and urban capability of the sites; 2. That consideration of the present application be deferred pending the outcome of the current Strategic Review of the Warriewood Valley and consideration of the Masterplan suggested above. (Exhibit 5)

• Note the second respondent states that the reference to owners consent refers to an "options agreement" in place between the Uniting Church and the applicant, which has since expired (Exhibit R3).

1. A gateway application to rezone the land was lodged with Council in 2011. The application was subsequently refused by Council, but on review was approved by the Joint Regional Planning Panel.
2. The subject site was rezoned on 27 June 2014 to its current mix of zonings. The current zoning of the site is detailed below:

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. Section 78A(1) of the Act states that a person may, subject to the regulations, apply to a consent authority for consent to carry out development. The Environmental Planning and Assessment Regulation 2000 (the Regulation) states that: 49 Persons who can make development applications (cf clause 46 of EP&A Regulation 1994) (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land.
3. The applicant seeks approval for a staged development application, and is therefore subject to Division 2A of the Act. Relevantly s83(1) of the Act defines a staged development application as: a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.
4. Section 83B(3) of the Act states that if consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.
5. Relevantly s83C states that if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land. However, at sub section (3) the clause requires that any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.
6. Division 3A of the Regulation contains special provisions relating to staged development applications: 70A Information to be included in staged development applications Despite clause 50 (1) (a), the information required to be provided in a staged development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application.
7. The effect of s83C of the Act is that clause 6.2 of LEP 2014 may be satisfied by the making and approval of a staged development application in respect of that land, in lieu of the requirement to prepare a Development Control Plan specific to the site.
8. Relevantly s83C(3) of the Act requires that any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations. The applicant has prepared this application under s83C of the Act to meet the requirements of cl. 6.2 of LEP 2014. The satisfaction of cl. 6.2 is a precondition to consent.
9. The development application is integrated development. Pursuant to cl 104 of State Environmental Planning Policy (Infrastructure) (SEPP Infrastructure) the application was referred to the RMS and RFS. The RFS has declined to grant a Bushfire Safety Authority for the development. The applicant provided additional information to the RFS by correspondence on 18 May 2017 seeking to address their concerns with the application. At the time of the proceedings no response had been provided by the RFS to the applicant's letter.
10. Pittwater Local Environmental Plan 2014 (LEP 2014) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl. 1.2(2)): (a) to promote development in Pittwater that is economically, environmentally and socially sustainable, … (e) to improve access throughout Pittwater, facilitate the use of public transport and encourage walking and cycling, (f) to encourage a range of housing in appropriate locations that provides for the needs of the community both now and in the future, (g) to protect and enhance Pittwater's natural environment and recreation areas, (h) to conserve Pittwater's European and Aboriginal heritage, (i) to minimise risks to the community in areas subject to environmental hazards including climate change, …
11. As detailed at paragraph [27] the site contains land zoned R2 - Low Density Residential, E4 - Environmental Living, E2 - Environmental conservation and part SP2 - Classified Road.
12. LEP 2014 requires the Court to consider and determine the following as preconditions to consent: 1. Whether I am satisfied and that the proposed development will not have any significant adverse impact on any of the following (cl. 6.1(4) LEP 2014): (a) opportunities for rehabilitation of aquatic and riparian vegetation, habitats and ecosystems within creek line corridors, (b) the water quality and flows within creek line corridors, (c) the stability of the bed, shore, and banks of any watercourse within creek line corridors. 1. Whether I am satisfied that cl. 6.2 of the LEP, and relevantly s83C(2) of the Act, are satisfied by the staged development application. Specifically whether the development application provides for the following: (a) a staging plan for the timely and efficient release of urban land making provision for necessary infrastructure and sequencing, including the final design and construction of the required road access, (b) an overall landscaping strategy for the protection and enhancement of visually prominent locations and for other matters, and detailed landscaping requirements for both the public and private domain, (c) stormwater and water quality management controls, (d) amelioration of natural and environmental hazards, including bush-fire, flooding and site contamination and, in relation to natural hazards, the safe occupation of and the evacuation from any land so affected, (e) assessment of the biodiversity values on the site and likely impacts and mitigation measures, (f) preparation of an Aboriginal Cultural Heritage Assessment (being a written report detailing the results of the assessment and recommendations for actions to be taken before, during and after an activity to manage and protect Aboriginal objects and declared Aboriginal places identified by the investigation and assessment), (g) detailed urban design controls. 1. Whether I am satisfied and that the proposed development will not have any significant adverse impact on biodiversity (cl. 7.6(4) LEP 2014); 2. Whether I am satisfied and that the proposed development will not have any significant adverse impact on geotechnical hazards (cl. 7.7(4) LEP 2014); 3. Whether I am satisfied that the following services, that are essential for the development are available, or that adequate arrangements have been made to make them available when required (cl. 7.10 LEP 2014); (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access.
13. The Pittwater 21 Development Control Plan, (DCP) applies to the proposal. The clauses of the DCP relevant to the appeal are: 1. Part A4.16 Warriewood Valley Locality 2. Part B2.2 Subdivision - Low Density Residential Areas 3. Part B3.2 Bushfire Hazard 4. Part C1.9 Adaptable Housing and Accessibility 5. Part C6 Design Criteria for Warriewood Valley Release Area. Part C6.1 Integrated Water Cycle Management Part C6.4 The Road System and Pedestrian and Cyclist Network Part C6.8 Residential Development and Subdivision Principles
14. The DCP provisions are a mandatory consideration, and a focal point, of the assessment of the application. However Section 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151).

The Issues

1. The starting point for the determination of the application is the consideration of the following questions in relation to the legal power of the Court in the appeal: 1. Whether owners consent for the use of the ROW within the Uniting Church land is required, and consequently whether the development application has been validly made; and 2. Whether the Court has the jurisdiction under section 39(2) of the Land and Environment Court Act (the Court Act) to order the variations to the easement requested by the applicant; or 3. Alternatively can the need to obtain such an interest in the land (or a variation to the easement), amongst other matters proposed by the Council, are appropriately to be deferred commencement conditions.
2. Subject to being satisfied on the above, I will also need to assess the application against the requirements of the provisions identified at paragraph 39 that are preconditions to consent, and the overall merit of the application.

Expert Evidence

1. In line with the issues in dispute in the proceedings the parties engaged experts in bushfire assessment, ecology, arboriculture and vegetation, traffic, water management, and town planning.
2. The experts for the applicant were: 1. Mr Terence O'Toole - Bushfire Assessment 2. Mr Mark Couston - Ecology, Arboriculture and vegetation 3. Ms Melanie Howden - Arboriculture and vegetation 4. Mr Craig McLaren - Traffic 5. Mr Mark Tooker - Water Management 6. Mr Greg Boston - Town Planning
3. The experts for the Council were: 1. Mr Lew Short - Bushfire Assessment 2. Ms Jennie Powel - Ecology 3. Mr Guy Paroissien - Arboriculture and vegetation 4. Mr Tim Rogers - Traffic 5. Ms Louise Collier - Water Management 6. Mr James Lovell - Town Planning
4. The experts for the Uniting Church were: 1. Mr Dean Brodie - Traffic
5. Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports.

Expert Evidence - Traffic:

1. In assessing the preliminary questions (refer paragraph [42]) it is necessary to review the traffic evidence of the respective experts.

Access

1. In the joint report the three traffic experts reached agreement that the existing variable 5.5m to 6m vehicular carriageway, which is referred in this joint report as the Right of Way (ROW) from Jubilee Avenue, currently poses a risk for pedestrians.
2. Importantly the experts agree that the risk for pedestrian/ vehicular conflict would increase with increased usage by pedestrians/ vehicles if pedestrian use of the ROW were not prohibited (Exhibit 9).
3. In reviewing how this risk could be addressed, the experts agreed the following was required: Provision of a 1.2m wide separated footpath within the 8m wide easement and adjacent to the variable width (5.5m to 6m) vehicular carriageway (ROW) would be necessary to facilitate safe pedestrian access (low level lighting desirable). (Exhibit 9)
4. In reaching this agreement Mr McLaren raised a number of concerns about the history of the development of the ROW, and whether the construction of the ROW had road safety certification. He concludes that the provision of safe pedestrian access was required, but failed to be provided, as part of the creation of the ROW.
5. It was Mr Brodie's evidence that the addition of a footpath to resolve the pedestrian/ vehicular conflict should only occur on the basis that the existing private ROW is designated a public road (Exhibit 9).
6. The joint reports also document that the experts agree that the pedestrian access should be improved from the subdivision to Mona Vale Road as follows: Subdivision plans are to be amended to incorporate a minimum 1.2m wide pedestrian link with a maximum grade of 12.5% (1:8) to Mona Vale Road to connect to the future pedestrian footpath along Mona Vale Road under the RMS proposed upgrade. An interim footpath link along the southern side of Mona Vale Road extending from Boundary Street to Daydream Street and beyond to the bus stop immediately west of Ponderosa Parade. (Exhibit 9)
7. The traffic experts accept that the proposed development will increase traffic on the ROW from 580, to 1040 daily vehicle trips per day (two way).
8. Mr McLaren argues that at 1040 vehicle trips per day the utilisation of the ROW is within the desirable daily vehicle trips of local roads based on AMCORD's design guide for access roads.
9. In relation to the width of the ROW, and manoeuvrability of cars and service vehicles Mr McLaren's evidence is: It is understood that the first 75m (the entire first bend) of the ROW from Jubilee Avenue is 6m wide, sufficient to allow for two-way traffic. There may sections down to 5.5m wide however this is still sufficient for two-way traffic flow which predominantly consists of standard car dimensions. The proportion of large service vehicles and indeed smaller trucks is very low and generally occur outside of peak AM and PM commuter traffic periods. (Exhibit 9)
10. It is Mr McLaren's conclusion that the pedestrian access along the ROW should be prohibited, and signage installed stating "No pedestrian access" due to existing pedestrian safety concerns. His evidence is summarised below: No safe pedestrian access exists to Mona Vale Road or Jubilee Avenue for pedestrians leaving Boundary Street on foot. The existing Right of Carriageway within Lot 10 DP5055 which is an Easement in Gross, as per point 1 on page 2 of the easement document, provides "Pedestrian members of the public" right of carriageway. The lot owner of DP1045166 and Council have failed one of the main objectives of the easement by not providing a safe pedestrian foot path on one side of the right of carriageway (separated from vehicular traffic) and no safe pedestrian access is achieved between Boundary Street and Jubilee Avenue. … … in relation to safe pedestrian access along the ROW, and in the absence of any agreement between the Applicant and Respondent 2 with respect to a separated footpath being constructed along the ROW, CM states that "No Pedestrian Access" signage ought to be installed along the ROW to prohibit pedestrian access due to existing pedestrian safety concerns. Pedestrians have the benefit of a safe pedestrian path along Boundary Street to Mona Vale Road and along the southern side of Mona Vale Road, linking to Ponderosa Parade which can be conditioned. (Exhibit 9)
11. Attached to the joint expert report is a 'pedestrian attractor plan' prepared by Mr McLaren. This aims to identify locations which pedestrians from the subdivision are likely to seek to access on foot. Based on this map he concludes that there are only two areas of pedestrian attraction for the proposed subdivision and that is the bus stop along the south side of Mona Vale Road, and a small retail precinct along Ponderosa Parade. It is his evidence that for pedestrians accessing these areas from the proposed subdivision the most direct pedestrian route is along Mona Vale Road (Exhibit 9).
12. It is Mr McLaren's conclusion that the requirement under cl. 7.10(e) to provide "suitable vehicular access" for the site is satisfied by the existing ROW /Public road from Jubilee Avenue and no works are required.
13. In the alternative it is Mr Rogers evidence that the carriageway within the ROW has a number of existing deficiencies that make it not suitable to provide vehicular access to the proposed development (Exhibit 9) His reasoning is as follows: The ROW has not been designed in accordance with the requirements of the Warriewood Valley Roads Masterplan (WVRM) - [as a] local road; and There is no separate footpath provided along the ROW requiring pedestrians to share the road which is in places narrow and steep; and The ROW has inadequate width in places to allow two vehicles to pass with poor sight lines and steep grades. Furthermore the applicant has not demonstrated that the ROW as constructed can accommodate the additional traffic. (Exhibit 9)
14. Mr Rogers argues that the applicant has failed to provide sufficient evidence to support the conclusion that the connection of the subject site to the public road network is unfeasible. He notes that the WVRM shows the extension of Boundary Street through to Forest Road It is his evidence that the extension of Boundary Street south to Forest Road would overcome the disconnect between the existing constructed portion of Boundary Street and the public road network. Whilst Mr Rogers accepts that the extension of Boundary Street and Forest Road to connect would require roads to be constructed through difficult terrain, and may not be practical, he concludes that the applicant has other alternatives such as to upgrade the existing ROW to a local road standard (as per WVRM) and dedicate to Council or construct a new public road along the southern boundary of Lot 10 DP 5055 (Exhibit 9).
15. Mr McLaren disagrees that the WVRM indicates an extension of Jubilee Avenue to Boundary Street.
16. In regards to the question of alternative accesses Mr McLaren firstly argues that the consideration of alternatives is not relevant to the current application, and secondly that: Alternative access was previously considered by connecting Boundary Road directly to Jubilee Avenue. The plans are presented in Figure 5. We are advised that alternative access was deemed unviable due to flora, fauna and construction costs. (Exhibit 9).
17. It is Mr Rogers evidence that the existing ROW has a number of deficiencies (narrow carriageway, no separate pedestrian path, limited passing opportunities, tight bends and steep grades). These create existing safety concerns that the increase in traffic from the proposed development will exacerbate. If the ROW is to be used to provide access to the proposed development these existing deficiencies need to be addressed. As the applicant proposes no improvements to the ROW to address the deficiencies,
18. Mr Rogers evidence was that given the application relies on access across the ROW /Public road from Jubilee Avenue, the application fails to meet the requirement to provide "suitable vehicular access" for the site (under cl. 7.10(e)).
19. It was Mr Rogers evidence that within the current 8m road reserve of the ROW a carriage way with capacity to accommodate the swept path for a B99 vehicle (from Australian Standards AS 2890.1-2004) and a SRV (Small rigid vehicle) can be accommodated along with a 1.2m pedestrian footpath, however this does not form part of the application.
20. Further it was Mr Rogers evidence that the provision of signage to restrict pedestrian access across the ROW was an impractical solution that would be unenforceable. Given that the ROW was a more desirable pedestrian access that the path proposed along Mona Vale Road, it was Mr Rogers conclusion that pedestrians would continue to utilise the ROW.
21. It is the evidence of Mr Brodie that Clause 6.2 of LEP 2014 requires the preparation of a site specific DCP and that whilst the applicant has chosen to lodge a staged DA in lieu, it fails to include investigations into all possible public road access opportunities available to the subject site (Exhibit 9). It is his evidence that therefore the consideration of alternative means of road access is relevant to the assessment of the application.
22. If the applicant is to continue to rely on the use of the ROW it is Mr Brodie's conclusion that the proposed development should: • Negotiate a transfer of ownership of the private ROW to a public road under the care and control of Council. • Pavement testing of existing pavements to gauge the suitability of the existing pavement to accommodate the increase in traffic generated by the sub division. • Improvement works to provide both a widened road on the existing bends (6.0-6.5m carriageway) and a separate suitably designed footpath linking
23. On the basis of the preceding reasoning, Mr Brodie also concludes that the application fails to meet the requirement to provide "suitable vehicular access" for the site (under cl. 7.10(e)).

Construction Traffic & Emergency Vehicles

1. The resident submission raised concerns about the potential impact of construction or excavation works, and in particular the passage of construction vehicles and plant over the ROW [refer paragraph 9].
2. On the basis of the evidence of Mr McLaren the applicant proposes the following to facilitate access for construction of the proposed subdivision: Construction vehicular access could be provided directly from Mona Vale Road, similar to the proposed emergency access location and any use of the ROW would be subject to a construction traffic management plan. There are ongoing discussions with the RMS to facilitate over-dimensional construction vehicle access via Mona Vale Road, given that the RMS require part of the Applicants land for stockpiling, for the Mona Road Vale upgrade. The largest vehicle that can access the site via the ROW can be detailed as part of a consent conditions as part of a Construction Traffic Management Plan and any required Traffic Control Plans.
3. It is Mr Rogers evidence that construction vehicle access would be preferred from Mona Vale Road, however this would require RMS approval which he concludes is not certain. It also the evidence of Mr Brodie that all construction access should be from Mona Vale Road.
4. Mr Rogers concludes that the applicant has not demonstrated that construction access could be safely provided via the ROW. Mr Rogers argues that at a truck swept paths should be prepared demonstrating that the largest vehicle can use the ROW and the proposed measures to manage traffic and pedestrian movements during construction, as a minimum (Exhibit 9).
5. Mr Brodie agrees with Mr Rogers that, should construction vehicle access from Mona Vale Road not be supported by the RMS, a construction traffic management plan prepared by a suitably accredited person would be necessary. It is the evidence of Mr Brodie that the construction traffic management plan should consider: - Turning path assessment of the existing private ROW to determine the maximum size construction vehicle which could use the ROW - Traffic control at both Jubilee Avenue and the church car park to control all vehicles travelling to / from the existing uses throughout the construction period.
6. Mr McLaren has been unable to access the works as executed plans of the ROW. As such his office has developed a "Detailed ROW concept plan" and section which are appended to the joint report (Exhibit 9). Utilising this information Mr McLaren has overlayed swept paths for SRV and B99 vehicles and concludes that they can be accommodated within the ROW. It is Mr McLaren's evidence that larger vehicles will require operational controls such as stop and go controls at the base and top of the ROW.

Emergency Vehicles

1. The applicant states that provision for emergency services, and in particular RFS will be provided via the intersection of Mona Vale Road and Boundary Street. The experts agree that this is appropriate.

Submissions

1. Mr Galasso submits that construction vehicle access can be provided under a construction management plan, which is an agreed deferred commencement condition in the Council's without prejudice conditions (Exhibit 17). He notes that the application includes a plan (Exhibit 1, Tab DA07) that delineates that the ROW is to be utilised for ingress and egress of construction vehicles. Mr Galasso notes that the plan also states: access to and exit from the site by construction vehicles will be controlled by site staff to ensure there is no vehicular or a pedestrian conflict on the street.
2. Mr Galasso concludes that the nature of the [construction] impacts are identified and identifiable (Transcript 16/8/17 page 62).
3. It is Mr Galasso's submission that for all vehicles and loads wider than 2.5m and longer that 19m the applicant will liaise with the RMS to obtain approval for access by these vehicles directly to and from Mona Vale Road under supporting CTMP [Construction Traffic Management Plans] and TCP's [Traffic Control Plans].
4. It is Mr Nash's submission that the Court has insufficient information about the capability of the ROW in relation to the proposed construction, or specificity of the anticipated impacts. In particular he submits that the following information is deficient, and should be provided to the Court to assess prior to consent being granted: 1. the existing easement imposes tonnage limits on vehicle traffic, it is unclear if this limit relates to the strength of the existing pavement within the ROW, and how these limits will affect the construction traffic management; 2. there has been no consultation with the childcare centre in relation to the question of construction traffic and how it may impact there operations. It is not possible for the Court to understand the extent of the impacts or weigh the question of whether they are reasonable in the assessment of the application; 3. Mr Rogers' evidence is that any access restrictions that might arise as a consequence of construction traffic should be part of the development application. Such a restriction should be considered as part of the concept approval; and 4. The plan relied on by the applicant is insufficient in detail and does not address the particularities of the sites sole access across the ROW.
5. Mr Nash submits that whilst in other developments it may be appropriate to defer the consideration of construction traffic methodology and impacts to post consent, this is an unusual site with significant access limitations and, therefore, these matters ought be addressed prior to determination.
6. Mr Nash relies on Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135. He concludes the findings in this case plainly state that in staged development application construction traffic and construction impacts must be assessed at DA stage, and that they can't be deferred to conditions. In making this submission he relies on paragraph [82-83] from the judgement, as follows: [83] In relation to the second issue in the appeal, it was common ground that s 79C applied to the determination of the application, which required the consent authority to take into consideration, inter alia, the likely impacts of "that development". The ultimate question is whether by confining the concept proposals to the completed use, and expressly excluding the construction phase necessary to achieve that completed use, assessment of the construction phase may be deferred at the time that consent is given to the concept proposal. [84] It is not necessary to determine this appeal to express a view as to whether in any circumstances that would be possible. In the present case, the concept proposals were articulated voluminously and with a deal of specificity, including by reference to detailed engineering plans (descending to the engineering specifics of the piers on which the new public space was to be built). There is no sound reason to confine the assessment required by s 79C only to the completed use of the concept proposals the subject of this application, and exclude from that assessment the inevitable impact of the construction phase. [emphasis added]
7. Ms Irish emphasises the evidence of Mr Rogers that larger trucks/ emergency vehicles and delivery vehicles will still cross the centre line of the ROW, even if the carriage width was upgraded to between 6 and 6.5m, as sought by Mr Brodie (refer paragraph [71]. She notes that whilst there was evidence from Mr McLaren that "over dimensional construction vehicles" could access the site via the intersection of Boundary Street with Mona Vale Road, no such approval has been sought or provided from RMS (First Respondents written submissions, page 11).
8. It is Ms Irish's submission that the Court has insufficient detail to assess the inevitable impacts from the construction phase of the staged development. It is her view that to make a proper assessment the Court would require specifics such as: 1. Details of the largest vehicles that can use the ROW for all stages (1-3), 2. The loaded weight limits, times of day, number frequency and distribution of truck movements per day so as to understand the impacts on both the users of the Uniting Church land and all other uses of the ROW.
9. Ms Irish submits that the deferral of this detail to a deferred commencement condition, or an operational condition, constitutes the deferral of an essential matter. In making this submission Ms Irish relies on the decisions of Young & Anor v Gosford City Council [2001] NSWLEC 191 at [48]; and Farah v Warringah Council & Ors [2006] NSWLEC 191 at paragraphs [59],[61], and [66].

Findings

1. I note that the experts agree that the ROW in its current form poses a risk to pedestrians, and that this risk will be exacerbated by the proposed development. With the benefit of the site view I am satisfied that it is impracticable to resolve or ameliorate this risk through signage. Despite the evidence of Mr McLaren I am not persuaded that pedestrians will not be attracted to locations in proximity to the site where traversing the ROW is not more convenient and desirable.
2. I accept the agreement of the traffic experts that the provision of a 1.2m wide, separated footpath within the easement is necessary to facilitate safe pedestrian access.
3. I acknowledge that included as an appendix to the joint traffic report is a plan of the proposed footpath location that demonstrates it can be accommodated within the ROW. The requirement to provide such a footway maybe appropriately imposed on the development via a condition of consent.
4. Mr McLaren concludes that the current minimum width of 5.5m is sufficient for two way traffic that predominately consists of standard cars.
5. I accept Mr Rogers' evidence that the applicant has failed to demonstrate adequately that the range of vehicular demands, both during and post construction that will arise from the development proposed by the concept plan can be accommodated within the ROW. I am satisfied that the there is a foreseeable likelihood that traffic demand that is generated by the implementation of the concept plan will include a more diverse range of vehicles types that occurs currently across the ROW.
6. I accept the evidence of Mr Rogers that if the ROW is to be utilised it needs to be improved by a widening of the carriageway and installation of a pedestrian footway to be suitable for the demand generated by the proposed development. Without these works I concur with the conclusions of Mr Brodie and Mr Rogers that the development fails to meet the requirements to provide "suitable vehicular access" for the site (cl 7.10(e)).
7. The application before the Court does not propose any works to the ROW, although in submissions the applicant accepted that the provision of the footway within the ROW may arise from the Courts determination.
8. I accept the submission of Mr Nash at paragraph [83] that the particular circumstances of this proposal make it inappropriate to defer consideration of the construction traffic methodology to post consent, for the reasons he provides. In making this determination I have also given consideration to the evidence of the public and their evidence of previous blockages to the ROW arising from delivery of construction plant, and their concerns about the lack of specificity of impacts that will arise from the use of the ROW as construction access for the development.
9. In order to undertake a full assessment of the application under s79C(1) of the Act I must have a real understanding of the impacts of the proposal. I cannot accept, as submitted by the applicant, that the current ROW is sufficient for the development, and that the construction plan submitted in the application provides sufficient particularity for an assessment of this phase of the proposal to be undertaken.
10. A deferred commencement consent is a final consent when it is granted. It is not designed to overcome unresolved issues, the determination of which could lead to unidentified changes to the concept of the development which may in turn give rise to impacts that require consideration under s79C of the Act: (Weal v Bathurst City Council & Anor [2000] NSWCA 88 at [93]). The deferring of a matter which a consent authority is required to consider under s79C is not something that s80 (3) authorises.

Is the consent of the owner of the right of way required to make the development application?

1. Mr Nash argues that applying the terms of cl. 49 of the Regulation the application requires the consent of the Uniting Church, and without that consent the application has not been validly made. In reaching this conclusion Mr Nash argues that the development application "relates to" the Uniting Church land, and the proposed intensification of the use of the ROW is a "use" for which development consent is required. Mr Nash refers to the definition of development in the Act: "development" means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
2. The development application form (Exhibit 1) contains the following description of the development: The application seeks approval for Stage 1 of a Staged Development under section 83B of the Environmental Planning and Assessment Act, as detailed on pages 16-17 of the attached Statement of Environmental Effects, comprising: Stage 1 being the subdivision of 39 residential lots varying in size from 500m² to 1317m², demolition of existing structures, provision of infrastructure and utilities including road works to Boundary Street, landscape and civil works, road construction and creation of open space lots. …
3. The Statement of Environmental Effects (Exhibit A) replicates the preceding description and includes the following statement: Accordingly the application seeks approval for Stage 1 as indicated above including provision of access to the site, via Jubilee Lane. The reliance on the existing ROW to service the development is reiterated in the Traffic Report lodged with the application (Exhibit A, tab 21)
4. Mr Nash argues that the development proposed will intensify the use of the ROW. He relies on the analysis within the Traffic Report which concludes the development will result in an additional 48 peak hourly and 459 daily trips, and an overall increase in daily vehicle trips (Exhibit A, tab 21).
5. Mr Nash submits that, consistent with the decision of the Court of Appeal in Lennard v Jessica Estates Pty Limited [2008] NSWCA 121 paragraph [61], land is not subdivided except for a particular purpose. He argues that in this case the applicant seeks to subdivide the land the purpose of creating residential lots, specifically intended to be used for residential purposes.
6. Mr Nash argues that, on this basis, the submission of the applicant that it is not this application that gives rise to intensification should be rejected [Transcript 16/08/17 page 94].
7. By reference to the High Court decision in North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20 Mr Nash submits that the current application is distinguished from this precedent as it is this application that gives rise to intensification, and therefore owner's consent is required. This is in contrast the Courts decision in North Sydney Council v Ligon where it concluded that where there was the prospect of intensification, consent was not required.
8. The North Sydney Council v Ligon case involved extensions to the North Sydney Club and the addition of residential units. Access to the Club was by right of way over adjoining land. The development application was lodged without the consent of the adjoining land.
9. In support of this conclusion Mr Nash relies on Huntington & Macgillivray v Hurstville City Council & Ors [2004] NSW LEC 694. This case relied on access to the development from a public road, across a right of carriage way on land owned by other parties. Pain J determined in that case that for the purposes of cl. 49(1)(b) of the Regulation the application did not "relate to the land" the right of carriage way was over, but that the Land and Environment Court did require the consent of the other parties burdened with the right of carriage way to enable the Court to have jurisdiction to determine the development application. Pain J reached this conclusion as follows: The intensification of the use by Lot 32 of the right of way burdening Lot A requires development consent in accordance with the EP&A Act given the use of the land is "development". This is also in accordance with Ligon at p 478. Accordingly, the applicant needs to apply for and obtain development consent for the intensification of the use of the right of way for Lot 32 if this development application is to ultimately proceed. Obviously the consent of the Second Respondents will be necessary for any such development application to be lodged for Lot A [the right of way]. [emphasis added]
10. In the alternative Mr Galasso submits that the issue of the need for owners consent where a development application relies on access from a ROW was "squarely addressed" in in North Sydney Council v Ligon. Mr Galasso's submission is that, consistent with the current application, the High Court held that, since the development application was made to develop only the Club's land, it was the land to which the application "relates" and on which the specified development is proposed to be carried out. Accordingly, the absence consent of the owner of the adjoining land does not invalidate the application (Applicant's written submissions, paragraph 5).
11. In response to the argument that the intensification of the ROW resulting from the DA requires owners consent Mr Galasso argues this was addressed to the contrary in North Sydney Council v Ligon at [18]: The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use, and unless that use be intensified, no question of consent to development of the Century Plaza land will arise. It may be expected that the use will be intensified but it does not follow that the prospect of intensification makes the application already lodged by Ligon invalid for want of the consent of Century Plaza. The prospect of intensification of use is capable of affecting the discretion to grant or refuse Ligon's application, but that is a different problem. [Emphasis added]
12. Finally Mr Galasso submits that even if intensification results from the proposal, the current application before the Court is not the application that would authorise the intensification (Applicant's written submissions, paragraph 5). He submits that this conclusion arises from applying the Court of Appeal's approach in Hillpalm v Tweed Shire Council [2002] NSWCA 332. In his submissions Mr Galasso summaries the reasoning of Hillpalm v Tweed as follows: In that case a development application was made to subdivide land known as lot 1. The only access to lot 1 was by way of a "proposed right of way 10 wide" over adjoining land and shown on a registered plan of subdivision. The owner of the adjoining land had not consented to the application. The Court held that the application in respect of lot 1 did not "relate to" the adjoining land and that the land to which the application related must primarily, if not exclusively by an examination of the terms of the application itself. (Applicant's written submissions, paragraph 5).

Findings

1. The matter subject of the appeal is the development sought by the application as specified in the development application form initially lodged with the Council (Huntington & McGillivray v Hurstville City Council [2004] NSWLEC 10873 paragraph [25]). The development application form describes the scope of the application as follows: This application seeks approval for Stage 1 of a Staged Development under 83B of the Environmental Planning and Assessment Act, as detailed on pages 16-17 of the attached Statement of Environmental Effects, comprising: Stage 1 being the subdivision of 39 residential lots varying in size from 500m² to 1317m², demolition of existing structures, provision of infrastructure and utilities including road works to Boundary Street, landscaping and civil works, road construction and creation of open space lots. Stage 2 being land subdivision of 23 residential lots varying in size from 505.3m² to 2601m², creation of open space lots, additional residue lot and additional road construction. Stage 3 being the construction of dwelling houses on individual residential lots.
2. The Statement of Environmental Effects makes the following statements in relation to access: Access to the site is to be via a proposed easement over the easement known as Dealing 1045166 as varied by dealing AB 605380 in Lot 10 of DP 5055 ('proposed easement'). In that regard, Council agreement is sought to amend the easement Alternatively, in the event that Council refuses to exercise its right to amend the easement, an application pursuant to Section 88K of the Conveyancing Act will be sought. Further, in the event that Council refuses to exercise its right to amend the easement, this application also seeks a deferred condition of commencement, pending the necessary approvals being granted in respect of the proposed access.
3. Given the above description of the development, an amendment to the easement was sought concurrently as part of the staged development application. In my view this distinguishes the facts of this appeal from North Sydney Council v Ligon where that development application related solely to the Club site, and not the ROW.
4. The current case is consistent with Hillpalm v Tweed as there are no works proposed by the development application within the ROW. This is made clear in the Statement of Environmental Effects, and the application form. I am satisfied that the land the current development application "relates to" does not include Lot 10 DP5055.
5. The traffic assessment lodged with the staged development application indicates the development will intensify the use of the ROW as follows: Existing Proposed Future Total AM Peak (8AM -9AM) 54 48 102 PM Peak (5PM - 6PM) 37 48 85

(Exhibit A Folder 2 of 3)

1. The facts of these proceedings align most closely with the decision of Pain J in Huntington & Macgillivray v Hurstville City Council. The case involved the erection of a residential flat building over the two lots, one of which had a Right of Way over adjoining land. It was proposed that the new development would use the Right of Way (Lot A) but one lot (lot 31) had that right. Her Honour determined at [32] that the intensification of the use by Lot 32 of the right of way burdening Lot A requires development consent in accordance with the EP&A Act given that the use of land is "development".
2. I find that the identified intensification of the use of the ROW (refer paragraph 115) falls within the definition of development under the Act. Consistent with Huntington & Macgillivray v Hurstville City Council, the applicant needs to apply for and obtain development consent for the intensification of the use of the right of way (or obtain a varied or new easement).
3. By reference to the wording of Section 83B(3) of the Act (refer paragraph [31]) I am satisfied that the current application, whilst a subdivision for residential purposes, only seeks approval for Stage 1 of the works. The relevant stage that will generate the additional "use" of the ROW is stage 3, outside the scope of the current application.
4. However, given the application is a staged DA which seeks approval for the concept plan for the whole development, it is relevant to consider the acceptability of the generation of additional traffic that will arise as part of the implementation of the concept plan by subsequent stages, even though the additional demand is not generated directly by an approval of this application. In my mind this is consistent with Lennard v Jessica Estates Pty Limited at [ paragraph 61] as the use is able to be foreseen, but does not form part of a stage for which consent is sought.
5. The applicant, relying on Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 at [paragraph 11], argues that such an application can be the subject of a deferred commencement condition either pending the creation of a new easement, or a variation of the current easement.
6. This is also considered in Huntington & Macgillivray v Hurstville City Council where at paragraph [27] Pain J indicates that theoretically a deferred commencement condition requiring that development consent be obtained for the intensification in use before development consent granted to this development application commences could be considered. I accept that such circumstances may arise in the determination of this application.
7. The acceptability of a deferred commencement condition in this case is addressed at paragraph [147-175].

Does the Court have the power to vary the easement?

1. In their Class 1 application, at 3, the applicant seeks: The Court make an order pursuant to section 39(2) of the Land and Environment Court Act 1979 (NSW) that the Easement in Gross (registered dealing 1045166 as varied by registered dealing AB605380M) registered on the title to Lot 10 in Deposited Plan 7055, being that land situate at 10 Jubilee Avenue, Warriewood benefitting the Respondent be amended so as to delete Clause 7 in its current form and have inserted: "7. owners, occupiers, invitees, and all other visitors requiring lawful access to any legally created lot in Deposited Plans 383009; 124602; and 816070"
2. This order correlates to the description of the development as outlined in the Statement of Environmental Effects, [Exhibit A, Tab 5]Mr Galasso submits that there is long standing and consistent authority that the Court has the power (to make the order) pursuant to s39(2) of the Land and Environment Court Act to vary the terms of the easement. The relevant section of the Court Act is: 39 Powers of Court on appeals … (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. …
3. In his submission Mr Galasso relies on Pro-Vision Developments Pty Ltd v Ku ring gai Municipal Council [2003] NSWLEC 226, which at [23] states: 23 Under s29(2) of the Land and Environment Court Act 1979 ("the Court Act"), for the purpose of hearing and disposing of an appeal, the Court has all the functions and discretions which the body whose decision is the subject of the appeal has in respect of the subject matter of the appeal. The rights of way in the present case are set out in an instrument registered under s88B of the Conveyancing Act. The instrument states that the person empowered to release, vary or modify the easement is the Council of the Municipality of Ku ring gai. The powers of the Court under s39(2) thus include the discretion to release, vary or modify the easement in the course of determining the development appeal, if the circumstances warrant (Willoughby Municipal Council v Huxley Homes Pty Ltd, NSWLEC, Stein J, 16 November 1989, unreported, McDougall v Warringah Shire Council (1993) 80 LGERA 151, Chehab v Canada Bay City Council [2002] NSWLEC 220 per Pain J).
4. Mr Galasso argues that the preceding case, and the precedents which it references, establishes that the Court has the same discretionary power as the Council to vary the easement in the terms the applicant seeks.
5. The consideration of a variation, or release, of a restriction to user, concurrently with the determination of an application, was considered by the Court in Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 16. This case was an appeal against a decision of a Commissioner in which the Commissioner granted development consent that required the variation of a restrictive covenant which limited the building to a single storey. The covenant was able to be varied with the consent of both the Council and the adjoining neighbour. The evidence before the Commissioner was that the neighbour consented to the variation yet the Council did not. Stein J stated: It is not a question of the Land and Environment Court usurping the role or jurisdiction of the Supreme Court under s. 89 of the Conveyancing Act. The power of the Council which falls to the Court under s. 39(2) is to agree, as an incident to the building application, to release the restriction of user and not the jurisdiction of the Supreme Court to entertain an application for an order to modify or extinguish a restriction on user. I see no need to call in aid s. 33 of the Interpretation Act but it is obvious that the object or purpose of s. 39 will be met if the Court can exercise the Council's power to release the restriction as an incident to the power to grant or refuse the building application. Similarly, I see no need to rely upon the wide wording in s. 22 of the Land and Environment Court Act.
6. Mr Galasso submits that in the event that the Court declines to exercise the discretion to vary the ROW, the alternate approach available in the proceedings is: 1. Imposition of a deferred commencement condition in relation to access as was done by the Court in Hillpalm v Tweed Shire Council & Anor [2002] NSWLEC17 at [20]; 2. The Applicant will then proceed with the pending Class 3 Application (Land and Environment Court Proceedings No: 2017/00237814) to obtain a new easement over the existing ROW under section 40 of the Court Act. (see Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 at [11]-[17]) [Applicant's written submissions, paragraph 3]
7. Separate to the question of the power of the Court to vary the terms of the ROW, is the question of whether a deferred commencement condition is appropriate in the circumstances of the case, this is discussed below.
8. The Respondents in the proceedings argue that the Court does not have the power to make the order requested. Their reasoning is as follows:

The variation sought does not relate to the land the subject of the application.

1. By reference to the plan annexed to the easement, the staged development application only relates to the area marked "Lot 5 DP124602", which comprises Lots 3, 4 and 5 in DP124602. No other lots benefited by the ROW form part of the staged development application. However the variation sought by the applicant extends beyond the lots that form part of the development application to any legally created lot in Deposited Plan 383009, 124602 and 816070. There is no evidence before the Court in relation to the expansion of the terms of the easement.
2. On the Respondents submissions the Court, under s39(2) of the Court Act, only has the power of the Council as it relates to the "subject of the appeal". In this respect they argue the order sought over reaches. Ms Irish submits that the subject of the appeal is a development application for subdivision, which in its terms does not seek any works or amendment to the terms of the ROW. As such it is her submission that consistent with Sydney City Council v IPOH Pty Ltd, [2006] NSW CA 300 Tobias JA at [34], amending the terms of the ROW is not a basic function of granting consent: … (d) If the development application is actually refused by the council or deemed to have been refused, then the application has a right to appeal to the Court pursuant to s 97 of the EPA Act. (e) The Court cannot uphold any such appeal and grant consent to the application unless the owner's consent to the making of the application has been given. … (g) The Court cannot exercise its function of determining the appeal by the granting of development consent to the application, if it is otherwise minded to do so, without the owner of the land having given its consent to the making of the application, This is because it is basic to the function of granting consent to a development application that cl 49 of the Regulation is complied with. (h) The Court has the same powers and function as the Council from whose decision the appeal is brought. The "matter the subject of the appeal" for the purposes of s 39(2) of the Court Act is whether consent to the development application should be granted or refused. …

If the variation is exercised it would not clear the way to the grant of consent.

1. Ms Irish submits that the Council function, which the applicant seeks the Court to exercise, is to vary the terms of the restriction. However she argues that if that function was exercised by the Court, rather than the Council, it would not clear the way to the granting of consent to the application if the merits warrant. Ms Irish argues that at best this would provide consent for the variation to the Easement in Gross, but any variation would be ineffective until the variation is registered under the Real Property Act 1900 (RP Act). Ms Irish submits that the RP Act at section 47(5B) precludes registration of a variation to an easement without consent of the Registered Proprietor of the land burdened, in this case the Uniting Church.
2. Ms Irish argues that it is not apparent that the Court would have the power under s39(2) to give mere consent on behalf of Council to vary the easement in circumstances where giving such consent would not be relevant to "dispose of the appeal" within the meaning of s39(2). Mere consent from Council to vary an easement (unlike owner's consent or a Roads Act approval) does not secure the access required for the proposal (Exhibit 5).

A proper assessment of the application concludes works are required to the ROW

1. Ms Irish argues that the evidence before the Court from the traffic experts would lead the Court to conclude that the application cannot be approved on merit without requiring works to occur in the ROW to secure appropriate vehicular access. She submits that under the terms of the easement such works would require the consent of the Uniting Church.

The terms of the easement capped its use to match the capacity of the built ROW

1. Further Ms Irish argues that the current wording of the easement contemplated deliberately limited rights and categories of "authorised persons" relative to the nature and extent of the 8m wide right of carriage way created in 2002 as shown on DP1045166. Its terms were very deliberately limited by both parties so as to serve, inter alia, a maximum of six "Approved Dwellings" on four adjoining lots of non-urban land (actually six lots), and only three "Approved Dwellings" on the subject site.
2. Ms Irish relies on Gallagher v Rainbow and Ors (1994) 179 CLR 624 at [633] cited in Pro-Vision v Ku ring gai at [12] which states: The principle is that an easement is no mere personal right; it is attached to the dominant land for the benefit of that land. To the extent that any part of the dominant land may benefit from the easement, the easement will be enforceable for the benefit of that part unless the easement, on its proper construction, benefits the dominant land only in its original form.
3. Applying this principle Ms Irish argues the variation sought by the applicant is the antithesis of the easement in its original form, and that the discretion to vary the easement should not be exercised by the Court [respondents written submissions].

Findings

1. In McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258 Kirby J held that the Court had the power to exercise: all the functions and discretions that the Council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval [emphasis added]
2. This approach is distinct from earlier decisions of the Court, such as Kogarah Municipal Council v Kent (1981) 46 LGERA 334, which took a narrower view of the Court's powers and held they extended only to the Council's functions "necessary" to the decision in question: The jurisdiction of the Land and Environment Court to exercise the powers and functions of a council has been held to extend only to those functions "necessary" to, or "essential" for, or "at the heart of" the decision in question.
3. Relevantly s39(1) of the Court Act states that: In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. [emphasis added]
4. Accordingly under s39(2) of the Court Act, the Court can do what the Council can do in relation to that subject matter of the appeal. By reference to paragraph [112] I am satisfied that that includes consideration of a variation to the easement which formed part of what was sought by the staged application. Accordingly the Court, on appeal, has the same discretion as the Council to determine whether to grant a variation to the easement as it relates to the "subject of the appeal".
5. On the basis of my consideration of the evidence of the traffic experts [refer paragraph 89-98] I accept the submission of Ms Irish that works are required to occur in the ROW to secure appropriate vehicular access, and the current terms of the easement reflect the existing capacity of the ROW to service a limited number of residential properties.
6. I have given weight in my consideration to both parties' submissions that the applicant has a secondary path to obtain an easement over Lot 10, as sought by the applicant through current Class 3 proceedings under section 40 of the Court Act.
7. I find that it is not appropriate to grant the amendments to the ROW sought by the applicant in paragraph 6 in the circumstances where: 1. The lots sought to be provided unfettered access (owners, occupiers, invitees, and all other visitors requiring lawful access to any legally created lot in Deposited Plans 383009; 124602; and 816070) under their current zoning are capable of further intensification or redevelopment (for example to childcare, dual occupancy, animal establishment). Whilst subject to a further development application, the effect of the amendment sought would be to provide unfettered access across the ROW to these lots that are currently restricted in their access to the public road network. There is no assessment before the Court that provides any analysis to support the variation sought for these properties; and 2. the balance of evidence of the traffic experts [paragraph 66,67and 70] is that works are required to the ROW to provide it with increased capacity for vehicular traffic as generated by this application; and 3. the agreed evidence of the traffic experts [paragraph 50 and 51] is that the current pedestrian provision of the ROW is unsafe; and 4. the development application the subject of the appeal does not incorporate or particularise the works required to address the preceding with enough certainty for the Court to exercise the discretion sought.
8. I accept Ms Irish's submission that through the variation and insertion of clause 7 of the existing ROW, the parties sought to limit the use of the ROW to its capacity. I am not persuaded on the evidence that the restriction should be altered in the way sought by the applicant.

Can the need to obtain an interest in the land, or obtain development consent for the intensification, or a variation to the easement be a deferred commencement condition?

1. As detailed at paragraph [128] Mr Galasso submits that in the event that the Court declines to exercise its discretion to vary the ROW the alternative approach is for the imposition a deferred commencement condition in relation to access (consistent with Hillpalm Pty Ltd v Tweed Shire Council at [20]).
2. In relation to the requirement to obtain development consent for any works necessary in the ROW it is Mr Galasso's submission that such works are authorised under the existing consent for the Church land, and that if the evidence of Mr McLaren is not accepted the scope of works to the ROW are adequately particularised in the plans that are appended to the joint report.
3. Mr Galasso concludes that the draft deferred commencement condition [Exhibit 17] are appropriately certain and final.
4. The content and time period of the deferred commencement condition in relation to access is contested by the parties. Broadly the Council proposes that if consent is granted the applicant shall (in summary form): 1. (a) Acquire the necessary land to create and dedicate to Council a public road that meets the requirements of the WVRM; or 2. (b) Obtain an interest in land, whether by right of carriage way or otherwise, to link from Boundary Road to the public road network ( Mona Vale road, Jubilee Avenue, Daydream Street or other) 3. Obtain development consent for works necessary to provide road access to the proposed subdivision development; 4. Prepare a construction management plan to detail how the constriction of the proposed development is to be implemented and deliveries of materials and machinery managed.
5. Broadly the applicant submits that: the option under (1) to acquire land and dedicate as a public road should be struck out; and that if required any works in the ROW would be for a modification of an existing road that was subject to merit assessment under the existing consent, DA0037/98.
6. Ms Irish argues that the form of the deferred commencement condition is such that it defers matters to a later time that should form part of the Courts consideration of the application prior to determination.
7. Consistent with Ms Irish's submission, Mr Nash argues that the deferred commencement condition is unlawful. Mr Nash argues that the requirements of cl.6.2 of LEP 2014 must be satisfied prior to consent, and the terms of the condition lack finality and defer consideration of a relevant matter, such as vehicular access to the site, to after the determination of the application.
8. In his submission Mr Nash relies on the decision of Talbot, J in Farah v Warringah Council & Others [2006] NSWLEC 191 which at paragraph [61] and [66] states: 61 It is not sufficient for present purposes to regard the preparation of a traffic management plan in any generally accepted sense that may expect it to be merely a compilation or digest of matters relating to the conduct of the traffic arrangements within the site as already proposed, considered and approved by the consent authority, for the future reference of the users of the site. The condition goes further than simply prescribing the preparation of a code of practice based upon established criteria. It stipulates that the TMP deal with each of the matters (a) to (d). Items (a) to (c) in particular required the TMP to include material that could have the effect of changing the manner in which the development operates, causing works to take place or altering the nature of the use of the rights of way. The prospect of the removal of vegetation is open ended and foreseeably could raise issues in respect of environmental impacts. The fact that, arguably, these consequences did not occur is not to the point. The problem is that the access arrangements were a critical issue and the final arrangements in that respect were left to be decided by the council at the later time of approving the TMP. It was clear from the consideration by the various arms of the council that a final determination of some satisfactory means of controlling the access to the site was outstanding. [emphasis added] [66]…The council as consent authority left issues, both known and unknown, in respect of the impact of the development unresolved and for future determination (Weal and Remath). The consent was not final and consequently invalid. An order will be made to that effect.
9. Mr Nash submits that the deferral of the provision of suitable access and the management of construction impacts to a deferred commencement condition is consistent with the findings of Farah v Warringah Council & Others and would result in a consent that is not final and consequently invalid.

Findings

1. Section 80 of the Act addresses the determination of applications. Relevantly sub section 3 addressees deferred commencement. (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. (3) Deferred commencement consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
2. The Regulation details the following requirements for deferred commencement consents: cl 95 Deferred commencement consent (1) A deferred commencement consent must be clearly identified as a deferred commencement consent (whether by the use of that expression or by reference to section 80 (3) of the Act or otherwise). (2) A deferred commencement consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions. (3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters. …

Is the condition final and certain as required by s80(1) of the Act?

1. The question of whether a condition is final and certain is addressed in Young and Anor v Gosford City Council [2001] NSWLEC 191at [46] as follows: To answer the question as to whether Condition 1 is final and certain, one asks, whether the condition allows the consent to be fundamentally or significantly altered by the subsequent determination of the matter which has been deferred. If it is possible that, consequent upon the matter which has been left open the consent is ultimately implemented may be significantly different from that which the consent purportedly approved, then the condition falls foul of the requirement that it be final and certain. … Here condition 1 does not leave open an opportunity for the consent to be anyway different to that which is contemplated by the approval granted by the Commissioner. Either the subdivision will occur with access over Lot 17, or without that access it will not. The proposal is not changed or altered by the easement ultimately being obtained; rather if it is to proceed it can only occur one way, viz, with the benefit of the easement.
2. The first part of the deferred commencement condition proposed by the Council is as follows: 1. The party seeking the benefit of the development consent shall: A. Acquire such land as is necessary to create (and dedicate for the benefit of the Council) a public road that meets the requirements of the Warriewood Valley Roads Masterplan (2016); or B. Obtain such interest in land, registered with the NSW Department of Land and Property Information, whether by 'right of carriageway' or otherwise, consistent with the design objectives of the Warriewood Valley Roads Masterplan (2016), to link the public road of Boundary Street Warriewood to the nearby public road hierarchy within the Warriewood Valley (namely, Mona Vale Road, Jubilee Avenue, Daydream Street, or any other public road) The concurrence of Northern Beaches Council is required in respect to the terms of any access proposed over private land to service the proposed subdivision. That is, if access is proposed by means other than via a public road or land intended to be dedicated to the Council as a public road, the consent of Northern Beaches Council is required in respect to the terms of that access. If access is proposed over private land, public liability insurance for a sum determined by Council is to be put in place for the life of the development served by the proposed access. The registered proprietor of the land the subject of the accessway is to be noted beneficiary under that policy. This requirement is to be included as a term of access.
3. I find that the first proposed deferred commencement condition in relation to road access is sufficiently certain as the applicant has a means, under section 40 of the LEC Act to obtain a new easement. I conclude that the resulting operational consent will not be fundamentally or significantly altered by the satisfaction of the condition. The staged DA relies on, and will continue to rely on the access across the ROW. Whilst the applicant states that there is no option to achieve the outcome of 1(A), that is a choice that is facilitated by the drafting of the condition.
4. I accept the submission of Mr Galasso that the approach to deferred commencement condition 1 is consistent with the decision of Becton Corporation Pty Ltd v Tweed Shire Council at paragraph [11-17].
5. I am satisfied that the condition is also consistent with Young and Anor v Gosford City Council in that the development will either proceed having satisfied the road access condition and will become operational (subject to the other deferred commencement conditions), or will not and will lapse.
6. A separate consideration in determining whether the proposed deferred commencement condition is appropriate is whether it results in the deferral of essential matters (Weal v Bathurst City Council & Anor [2000] NSWCA 88).
7. The second part of the deferred commencement condition proposed by the Council is as follows: The party seeking the benefit of the development consent shall obtain development consent for works necessary to provide road access to the proposed subdivision development. The development application shall include the following documentation and/or information for the land (and the curtilage thereto) the subject of Deferred Commencement Consent Condition 1 above: A. A Statement of Environmental Effects; B. Flora and Fauna Report; C. An report from a suitably qualified AQF 5 arborist including details of proposed tree removal (with such report cross-referenced to the Flora and Fauna Report at 2(b) above); D. A geotechnical engineers report (with appropriate dilapidation reports) detailing: i. the extent of excavation necessary to complete the works; ii. the impact of the excavation upon existing nearby works, structures and infrastructure - and how those impacts are to be addressed; E. Traffic Engineer's Report including: i. Compliance with the Warriewood Valley Roads Masterplan (2016); ii. Road design plans including, where appropriate: (a) necessary upgrade of any existing road and associated infrastructure; (b) road pavement tests, where any existing road or infrastructure is to be used; (c) separation between edge of kerb and pedestrian pathway(s); (d) Swept paths; (e) Design load criteria F. Landscape Plan including tree replacement plan and details of method of retaining fill or supporting cut portions of land to facilitate the works; G. Infrastructure and Utility Services Re-Location/Upgrade Report; H. Construction Management Plan; I. Traffic Management Plan which has regard for any existing or adjoining uses to the land the subject of the proposed works; J. Bushfire Report and details of Asset Protection Zones.
8. LEP 2014 mandates at cl. 6.2(2) that: Development consent must not be granted for development on land identified as "Clause 6.2" on the Urban Release Area Map unless a development control plan that provides for the matters specified in subclause (3) has been prepared for the land.
9. This clause is a matter that must be satisfied prior to consent. I note that in accordance with the relevant provisions of the Act the applicant has lodged a staged development application in lieu of a development control plan. However the requirements of cl 6.2 of LEP 2014 remain the same, and must be satisfied by the staged DA.
10. Importantly at cl. 6.2(3)(a) the development control plan (or staged development application) must provide for the following: (a) a staging plan for the timely and efficient release of urban land making provision for necessary infrastructure and sequencing, including the final design and construction of the required road access,
11. On the basis of the evidence before the Court, and following consideration of the submissions, I am not satisfied that it is appropriate to defer the achievement of the required road access for the development (as outlined in deferred commenced condition 2) and allow it to be satisfied post determination. My reasoning is as follows: 1. The implementation of this condition will result in a fundamental change to the description and scope of the application as it brings in additional land; 2. The scope of works required by the condition is uncertain and not particularised sufficiently to determine the scope of any impacts that may arise from the works, or to allow an assessment of whether such impacts are satisfactory; 3. I accept the submission of Mr Nash that the deferral of the provision of suitable access and the management of construction impacts to a deferred commencement condition is consistent with the findings of Farah v Warringah Council & Others and would result in a consent that is not final and consequently invalid. 4. And for the reasons detailed at paragraph 96- 98 of this judgement.
12. The third part of the deferred commencement condition proposed by the Council is as follows: A construction traffic management plan (CTMP) prepared by a suitably qualified traffic consultant is to be submitted to the Council. The plan is to include, but not be limited to: A. Quantity of material to be transported; B. Proposed truck movements per day; C. Proposed hours of operation; D. Proposed traffic routes, noting that 3 tonne limits apply to some roads within the former Pittwater Council Local Government Area; E. Use of Mona Vale Road for access by oversize vehicles (note, RMS approval required) F. Proposed Traffic Measures for the use of the right of way or road access; G. An overall traffic management plan. This traffic management plan is an umbrella to set guidance for construction management associated with the subdivision works and in respect of future development of individual lots. The party having the benefit of the development consent is to demonstrate to the satisfaction of Council how the submitted traffic management plan is to be implemented, where required, throughout the construction phase of the subdivision development and the construction of dwellings upon individual allotments created by the subdivision.
13. Consistent with my findings at paragraph [168], I do not accept that the Court in determining the development application can rely on the deferred commencement condition as a means of curing a lack of clarity as to how the construction of the proposed development will be managed. It is clear from the scope of the development application (refer paragraph [2) that it seeks approval for physical works that will require access for construction vehicles, and various machinery.
14. The terms of s79C of the Act are mandatory: the Court is obliged to take into consideration relevant matters from the catalogue of matters in s79(c), and to weigh them up in determining the development application. Two of these the impacts of the proposed development, s79C (1)(b) and at (e) the public interest. The Court heard submissions from residents raising concern about a lack of specificity of the impacts that will arise from the construction of the subdivision, and how that may, or may not, impact their operations.
15. I am satisfied that in circumstances where access is not from a public road, but rather facilitated through a ROW, the consideration of the impacts that may arise from construction are relevant to the determination of whether consent should be granted or not.
16. I am satisfied that following determination of the application there will remain a construction impact, and a scope of works generated intensification of the use of the ROW by the development that is unclear. Consistent with the decision of the Court of Appeal in Bay Simmer Investments Pty Ltd v State of New South Wales the assessment of the subject application should incorporate a consideration of the construction impacts. There is insufficient evidence before the Court for such an assessment to be made.
17. I find that leaving this aspect of the development to be dealt with separately is akin to not addressing a fundamental aspect of the application (Weal v Bathurst City Council & Anor).
18. As a result of the preceding I find that the proposed deferred commencement condition leaves issues, both known and unknown, for future determination and the scope of impacts of the development unresolved(Farrah v Warringah Council paragraph [66]). As a result, consistent with my determination in relation to deferred commencement condition 2, I find that the proposed deferred commencement condition 3 is invalid.
19. I note that the deferred commencement condition proposed by the Council contains further particulars. Given the outcome of the remaining judgement it is not necessary to deal with the remaining conditions.

Is suitable vehicular access for the development available, or has adequate arrangements have been made for suitable vehicular access to be available when required (cl 7.10 LEP 2014)?

1. For completeness on the basis of the evidence of the traffic experts and consistent with my findings at paragraphs [89- 98] I am satisfied that the development application fails to provide suitable vehicular access for the development, or demonstrate that adequate arrangements have been made for such access.
2. I am satisfied that it is unsatisfactory for such a precondition to be met through a means such as a deferred commencement condition that is not contained within the development consent process [Weal v Bathurst City Council & Anor].

Findings

1. I find that the satisfied that in the circumstances of the case it is inappropriate to grant deferred commencement consent of the form proposed for the reasoning outlined at paragraphs [168 and 175].
2. Pursuant to cl 7.10 LEP 2014 I am not satisfied that the development application demonstrates that suitable vehicular access is available, or that adequate arrangements have been made to make that access available when required by the development for the reasons outlined at paragraphs [89- 98] of the judgment.
3. Pursuant to cl 6.2 of LEP 2014 I find that the staged development application fails to make provision for the necessary infrastructure (road access), on the basis of the reasoning outlined in the judgment. The provisions of Clause 6.2 are precise, and a staged development application made pursuant to Section 83C of the Act cannot be approved unless the provisions of the LEP are satisfied.
4. Consequent there is no power to grant consent to the development application and the application must fail.
5. Having found that the there is no power to grant consent the development application must be refused. Consequently, it is not necessary to deal with the other contentions.

Orders:

1. The orders of the Court are: 1. The appeal is dismissed; 2. Staged Development application N0330/16, at Lots 3,4,5 of DP 124602 known as 120 Mona Vale Road Warriewood for: 1. A concept proposal for residential development comprising subdivision to create 62 residential allotments and construction of dwellings on each lot, demolition of existing structures and construction of associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; and 2. Consent to carry out Stage One of the development - comprising the demolition of existing structures, subdivision to create 39 residential lots and a residue lot under Torrens Title, associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; is determined by way of refusal; 1. The request to make an order pursuant to Section 39(2) of the Land and Environment Court Act 1979 (NW) that the Clause 7 of Easement in Gross (registered dealing 1945166 as varied by registered dealing AB605380M) registered on title to Lot 10 in Deposited Plan 7055, being that land situate at 10 Jubilee Avenue, Warriewood be amended is declined; 2. The exhibits are returned with the exception of exhibits R3, 5, A, B and C. ……………. D M Dickson Commissioner of the Court

---

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: 19 September 2017