Redbank United Pty Ltd v Blue Mountains City Council

Land and Environment Court (NSW)|2024-07-03

Judgment

COMMISSIONER: Development consent X/508/2018 (the development consent) was granted by Blue Mountains City Council (Council) on 12 July 2019. In the consent notice the development is described as "two storey dwelling and detached garage". In Council's amended statement of facts and contentions filed 20 May 2024 and marked Ex 1 in the proceedings, the property description for the site is Lot 6 DP 19718. The site is indicated to have the address of 11-17 Surrey Street, Bullaburra.
Relevant to these proceedings, Redbank United Pty Ltd (applicant) has sought to modify the development consent under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act). The applicant's modification application goes under the reference number XM/508/2018/B (modification application).
The modification application is particularly concerned with certain of the conditions of consent relating to vehicular access. Council determined the modification application on 9 October 2023 by modifying certain of the conditions in the development consent. However, the applicant was dissatisfied with this determination and, relevant to the provisions of s 8.9 of the EPA Act, has appealed to the Court against the determination.

Site and planning context

Lot 6 (the site) has an area of approximately 2658m2. It is among a small group of lots located to the south of an undeveloped section of what I will term the Surrey Street road reservation. The site is not currently serviced with water or sewer, with services generally available from near the intersection of Anderson and Surrey Streets. This undeveloped section of the Surrey Street road reservation is in a quite natural state. It accommodates substantial native vegetation and some rock outcrops.

Note on proceedings

In these proceedings, three individual expert reports were prepared and tendered into evidence by Council, as indicated in the table below. Expert Expertise Exhibit reference F Nagel Environmental science Ex 3 S Krimmer Health and building surveying Ex 4 K Hawken Development engineering Ex 5

The applicant chose not to put on expert evidence.
On the first day of the hearing, prior to the commencement of in-Court proceedings, there was an opportunity for an inspection of the site and its context, including the environs of Surrey Street. This occurred in the company of the parties and the appointed experts. While the site inspection occurred in the course of conciliation, I note that the applicant indicated a reliance on the site inspection and, in particular, my own inspection of the site context, at least with respect to tree removal and the relationship to bushfire risk management considerations ((Tcpt 3 July 2024 p 72 (47-49)).

Points in dispute

It will be seen that this dispute essentially relates to the appropriateness of consent conditions.
The applicant filed a set of proposed conditions of consent (ie incorporating its proposed modifications) on 26 June 2024, with a series of strikethroughs and/or additions. This was tendered into evidence and marked Ex B in the proceedings. I can assume Ex B as representing the appeal outcome sought by the applicant (Tcpt 2 July 2024 p 3 (26) and 3 July 2024 p 84 (6)).
I have found it useful to have a mind to caselaw in relation to the test for the validity of conditions of consent, conveniently outlined in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury) at 607G. The first limb of Newbury would require conditions to have a planning purpose. Invalidity would occur if a condition was imposed solely for some other ulterior purpose. In these proceedings, this form of invalidity (in regard to consent conditions imposed by Council) was a direct claim of the applicant.
The second and third limbs of Newbury would require conditions of consent to reasonably and fairly relate to the development the subject of the development application and not be so unreasonable that no reasonable consent authority could impose it (although the suggestion that the third limb is already captured by the second makes sense to me at least (Tomasic v Port Stephens Council [2021] NSWLEC 56 [100])). It is fair to think the applicant saw invalidity on these grounds also.
In case there be any misinterpretation, I would also see that the evaluation before me is not only a question of the legal "validity" of conditions proposed by Council. The question before me is of the general merits; or the more appropriate approach to conditions, having a mind to the evidence and submissions of both parties.
The essential points in dispute in these proceedings, can be synthesised into five, each relating to the arrangements for vehicle access along Surrey Street to the site boundary. The consent refers to this vehicle access as a private driveway, I will adopt this terminology in this judgement generally, given its alignment with the wording of the conditions. These four points of dispute are: 1. Whether Council has already approved the essentials of the private driveway, including by way of approval, under s 138(1) of the Roads Act, for works on or over a public road. This is the major point of dispute and takes up the bulk of this judgement. 2. Whether it is reasonable for the consent to indicate who is responsible for the works associated with the private driveway, and in particular that these works are to be at no cost to Council. 3. Whether it is reasonable for the consent to indicate that the applicant is responsible for the maintenance of the private driveway. 4. Whether Council should itself remove trees in the Surrey Street road reservation, in law, or as a means of proper bushfire risk management. 5. The consents provisions relating to the phasing of the construction of the private driveway.
I will commence with these points and come to some other lesser points of dispute; along with some points of agreement in relation to the modification of the consent, later in the judgement.

Detailed design and approval of the private driveway

Condition 17 in the development consent is concerned with the detailed design of the private driveway within the Surrey Street road reservation. It refers to a further approval for this detailed design (under the Roads Act). The current version of Condition 17 is provided below. 17. Approval of the stamped plans by Marblaze Civil & Structural Engineering is approval for the general footprint of the driveway and location of the turning area in the road reserve only and is not an approval for the levels or design of the driveway. A detailed design to meet the requirements listed below will need to be submitted with the Roads Act application for approval. The following engineering works shall be constructed by the applicant at the applicant's expense; • The construction of a new private driveway from the end of the formed section of Surrey Street to the property boundary with a design that minimises disturbance, cut, fill and tree impacts as far as practicable in accordance with BM DCP 2015 Part C1.1. Details are to be provided with the Roads Act application for approval. The design is to include the following: • Arborist's advice (minimum qualification AQF level 5) regarding trees to be removed or trees to be protected and Preparation of a Tree Protection Plan in accordance with AS 4970-2009. • Structural design certified by a structural engineer for any suspended sections or retaining structures. • Crossfall for the driveway is to be 3% not 5 degrees. • The entire driveway is to have an all weather surface i.e. concrete or asphalt. • Management of driveway surface runoff. • Demonstration that overland flow from upstream which currently flows down the dish drain will be prevented from damaging the driveway and will not be further concentrated so as to cause erosion. • Conduits are to be provided in or under the driveway for services. • Geotechnical engineer's advice on pavement design, batter slopes, retaining structures and foundations for suspended sections. • The driveway is to be structurally adequate for construction vehicle and fire fighting vehicle loadings. • The turning bay is to meet the requirements of the RFS as outlined in Condition 41. • Retaining structures are to be provided where required to minimise the area of disturbance, keep the works within the road reserve, or preserve trees. Plans are also to be provided for Council's approval of any private sewer line in the road reserve, showing how the line will be installed without excessive removal of vegetation (horizontal boring or placement of the conduit in or under the driveway may be necessary).
Briefly here, I note the initial paragraph of Condition 17 references "stamped plans by Marblaze Civil & Structural Engineering". Condition 1, concerned with "confirmation of relevant plans and documents", itemises the Marblaze plan set and nominates them as "road access plans".
Condition 25 also has relevance to this point of dispute. It is concerned with limitations to tree removal, including in regard to existing trees within the unmade Surrey Street: 25. No trees or other vegetation is to be removed or pruned unless such works are permitted by this development consent, including approved plans and consent conditions, or such works comprise weed removal as permitted by DCP 2015 Part C2.3 or prior written approval from Council is obtained. The removal of 128 trees to facilitate vehicle access to the house is not approved as part of this modified consent. Tree removal and retention within the road reserve is to be approved as part of the Roads Act approval (refer to condition 17) following provision of supporting Arboricultural advice. The useful life expectancy of trees to be retained is not compromised during the site preparation, construction or the asset protection zone implementation process. All trees and other vegetation located within the road reserve are to be retained except within the footprint of approved driveway works. Advisory Note: Clearing under the 10/50 Code cannot be inconsistent with the conservation and tree/vegetation restoration, retention and protection requirements of this development consent (as required in Section 7.8 of the NSW Rural Fire Services 10/50 Vegetation Clearing Code of Practice) i.e. the conditions of this development consent prevail over any 10/50 clearing entitlement.
I understood the applicant to seek the deletion of Condition 17 generally or, if not, deletion of any wording to suggest a requirement for Roads Act consent (there is an acknowledgement by the applicant of potential for some further road engineering detailing to be provided). There would also be deletion of any suggestion that the road works be at the applicant's expense. Condition 25 would be modified by deleting the second paragraph ("The removal of 128 trees …"), and altering the third paragraph to have the useful life expectancy of trees not be "unduly" compromised.
The applicant's arguments, in relation to this first area of dispute (concerning the detailed design and approval of the private driveway) and why the applicant's position on the related conditions should be preferred over Council's, are quite diffuse. I have found it useful to consider the applicant's arguments, in this first area of dispute, under five topics. First, is its argument that Condition 17 is not a condition but a commentary, or a piece of Council advice, concerning the effect of the development consent and future interaction with Council in relation to future responsibilities. According to the applicant, there may be a place for such information in a covering letter accompanying the consent but such commentary or advice should not be a condition of consent. (Tcpt 3 July 2024 p 65 (21-45)).
Second, is that Condition 17 lacks clarity with respect to what is being consented to. The applicant points to the "stamped plans" as a consent element of significant weight. The applicant also points to oral evidence from Council experts which indicated the development consent gave a "concept approval" for the private driveway. But the applicant argued there was no provisions for such a (concept) approval under the Roads Act, and that it was clear enough that Council is here not referring to a consent for a concept development application (under Division 4.4 of the EPA Act). The applicant argues there is no provision under the EPA Act, for a kind of "half approval" (Tcpt 3 July 2024 p 66 (10-12)): "…the condition provides a structure where on its face if read it says we've given you this approval subject to you getting an approval from us under a different Act. We say is that a proper use of your powers under this Act?"
Third, as I understand it, concerns Condition 17's linking of a development consent under the EPA Act with an approval under s 138 of the Roads Act, generally; given there are no direct appeal provisions with respect to s 138 of the Roads Act: (Tcpt 3 July 2024 p 66 (24-31)): "So what we're concerned about is that where we come to the Council and apply and get an approval, we shouldn't be sent off to say, well, you'll have to come back and get through another hurdle under which, if you did it on its own, you wouldn't get the appeal rights that you have under this development approval. So we say that it's outside power to give this sort of approval. It doesn't make sense. We say that the sensible rendition of what the Council has done is that they have issued a EPA approval for the dwelling. In our view they've issued an EPA approval for the roadworks."
Fourth, is that Council has already issued the Roads Act consent for the driveway by virtue of the conditions already in place (Tcpt 3 July 2024 p 67 (1-5)): "Development and consent, all those works have been approved. And that they have also approved it under the Roads Act. The strength we have there is, I think you've been taken to it, but it's a situation that the Council doesn't need another application in order to make that approval. So we say they must be taken to have made it."
The applicant's reasoning here included reference to the following authority: Shellharbour Municipal Council V Rovili Pty Ltd (1989) 16 NSWLR 104 (Rovili).
Fifth, is that Council is incorrect in thinking that there are likely to be significant changes to the proposed driveway particulars to address environmental concerns (in particular relating to tree removal and soil and water management). While some matters of detail might be able to be changed, the applicant saw no substantive changes to the driveway configuration, from that indicated in the plans nominated at Condition 1, to be practical or required (Tcpt 3 Jul7 2024 p 67 (1-5)): "And as matters of detail we have no submission that that might not improve certain aspects. But it's detailed changes, it's not conceptual changes, such as putting in [piers] and columns and beams and trying to traverse on that way. We say, in any event, that those suggestions of how to access the property are prohibitive in any event. And it wouldn't bear a..(not transcribable)..under proper consideration. So condition 17, is an important condition, and it requires, in our respectful submission, the Commissioner to consider what is the style of conditions this Court expects from counsel. And is it appropriate and is it within power to condition something on a further permit from council. We say it's not; it'll be a matter for you to look at."
As noted above, it is Condition 25 which deals with Council's concerns on tree removal. Currently, there is direct reference to a requirement that "removal of 128 trees to facilitate vehicle access to the house is not approved …". A completed form relating to the applicant's proposed modification application indicated removal of 128 trees (Ex 2 Tab 12 p 140). Council's version of Condition 25 also linked actual approval for tree removal associated with works in the road reserve to Condition 17 (and the Roads Act approval). In addition, Council's version of Condition 25 sought that useful life expectancy of retained trees not be compromised beyond those approved for removal, as I understood it, for the whole of the project. The applicant's version sought to focus on the construction on the driveway and that useful life expectancy of trees not be "unduly" compromised.

Consent's approach to resolution of private driveway details is appropriate

It will be seen that I agree with Council in relation to the retention of both Conditions 17 and 25. I will explain my reasoning generally in reverse order to my listing of the topics, above.

Environmental concerns

It is clear to me from the site inspection and sworn expert evidence that there are significant concerns relating to native vegetation removal and soil and water management and related potential downstream impacts, which are not at a point of final resolution with the consent, as granted. These concerns include matters directly raised in Council policy instruments. In her evidence Ms Nagel indicates her view that the Road Access Plans prepared by Marblaze, which the applicant would see as establishing the essential proposed works, do not incorporate the required site responsive design (Ex 4 pars 21-23): 21. The Road Access Plans by Marblaze are not considered to reflect a site responsive design that demonstrates clearing, cut and fill and environmental impacts are appropriately avoided and minimised. 22. The detailed design improvements, arborist assessment advice and Tree Protection Plan required by condition 17 will minimise disturbance, cut, fill and tree impacts as far as practicable to ensure the works are in accordance with the environmental provisions of BM DCP 2015 Part C1.1, specifically controls C1 and C2. 23. An alternative road access design, as guided by Condition 17, with reduced environmental impacts can be reasonably provided and will ensure compliance with the relevant LEP 2015 and DCP 2015 provisions and the Australian Standard for Protection of trees on development sites AS 4970-2009
In reference to the above evidence I note in particular BMDCP 2015 Part C1.1, Control C2, providing as follows: "Provide a site responsive development and protect the environmental values of the site by ensuring the location and design of the development: (a) effectively integrates with the natural topography and reflects and compliments natural site features through the location of structures, outlook, design and materials, and (b) is located as far as practicable within existing cleared areas and avoids unnecessary clearing of native trees and other native vegetation, and (c) minimises site disturbance and cut and fill, and (d) is located outside of environmentally sensitive land as far as practicable, and (e) provides adequately sized buffer areas to protect environmentally sensitive or significant natural features, and (f) maximises the retention of native vegetation linkages across the landscape, and (g) incorporates best practice water management techniques to protect the surface and groundwater regimes and water quality of the site."
These circumstances where there is no final resolution of the environmental factors relating to proposed development should not be seen as a criticism of the development consent. The requirement under s 4.15(1)(b) of the EPA Act, is the "taking into consideration" of likely environmental impacts. It is apparent that this has occurred in that, with Condition 17 and 25, a pathway for the resolution of these matters is established. Condition 17 explicitly indicates the stamping of plans is for the "general footprint of the driveway and location of the turning area in the road reserve only and is not an approval for the levels or design of the driveway", and that a future design "must minimises disturbance, cut, fill and tree impacts as far as practicable in accordance with BM DCP 2015 Part C1.1". Similarly, Condition 25 indicates that there is no consent to the removal of 128 trees (as has been indicated as part of the application in the application documentation). In both instances, the elected pathway in the consent notice involves a s 138 Roads Act consent, relating to which Council is the approval body.
While I note the applicant's arguments that any changes to its proposed configuration of road access work would be "prohibitive", I was not convinced, on the evidence, of this point. In this sensitive setting, where a requirement for site responsive design to protect environmental values is established policy, considerable associated costs for the provision of the proposed access can reasonably be expected. A determination by the applicant, itself, that such costs are prohibitive for the applicant, is of little assistance to the Court here.

Whether a section 138 consent under the Roads Act has already been issued.

The applicant argues that Council, as the road authority, has already issued a Roads Act consent. The applicant relies to an extent on s 139(1)(a) and (b) which provides that a s 138 consent may be granted "on the roads authority's initiative or on the application of any person" and may be granted "generally or for a particular case". The applicant argues that (Tcpt 3 July 2024 75 (27-29)): "…the grant of a Roads Act application is incidental to the EPA application. And we say that there's been a detailed application in both respects and that the approval should apply to them both."
Further the applicant referred particularly to one of a number of "deductions" in Rovili at p 111: "Where a council gives its consent to a development application in respect of a structure projecting over a public road it is to be taken as having impliedly consented to the making of the development application. "… This conclusion is based upon the applicability of the principle that a council can impliedly exercise two powers when all it purports to do is to exercise one power"...
I understood the applicant's point was that while the Council or its officers may have thought they were exercising only the power to grant consent, they were impliedly exercising the separate power to issue the Roads Act approval, given all of the circumstances (including the lack of real need for more than detailed changes and the fact of the provisions of s 139(1)(a) and (b) (see [35])).
I am not persuaded by this argument. It is clear that Council has no understanding of having itself issued a Roads Act consent, and actively indicated the opposite to this intention. This is made clear in the development consent through the repeated reference (including in Conditions 17 and 25) to the need to secure a Roads Act consent. Ms Hawken indicates in her evidence that these plans are not sufficiently developed or acceptable to be approved under s 138 of the Roads Act (Ex 5 p 3). I generally accept the evidence of Ms Nagel and Ms Hawken that the current road plans are not sufficiently "detailed" for a Roads Act approval in this instance. Nothing in the material provided by the applicant is convincing to suggest the potential for a s 138 Roads Act consent to be issued entirely at odds with the intent of Council.
The applicant's reference to Rovili (see [36] above) is not persuasive. It is one thing to bring to attention "the principle that a council can impliedly exercise two powers when all it purports to do is to exercise one power". But another thing altogether to, it seems essentially on that basis, argue that in this instance that particular principle applies in the circumstances of this case. I think the intent is to use deductive reasoning. But at an initial level, "the principle" is only that a council "can" undertake this implied exercise, not that it always does. For the principle to be confirmed in this case, further particular details of the principle and its empirical application would need to be convincingly argued by the applicant. The application of the principle in Rovili is entirely different from this case. In Rovili, the setting was that a council had taken the positive step of "(giving) its consent to a development application in respect of a structure projecting over" its land, without giving its owners consent. In that instance it can be readily perceived that an implied owner's consent had been provided, particularly in consideration of the other "deductions" under Rovili at p 111. The case here is entirely different with Council positively affirming within the consent itself that there remains a need for a Roads Act approval.

No appeal provisions relating to consent for works and structures under s 138 of the Roads Act

The parties agree that there are no appeal provisions for an applicant for consent under s 138 of the Roads Act. It is not clear to me how this fact is of relevance to my consideration of the modification application before me under the s 4.55 of the EPA Act. If the legislative drafters have taken the view that there should be no appeal provisions for s 138 approvals that does not change my view in relation to this particular modification application under the EPA Act. Even if there were a legal connection, I am not satisfied on the evidence that the current road plans (as referenced in Condition 1 of the consent conditions) are sufficiently detailed for a Roads Act approval in this instance.

"Half approval" conception.

The applicant raises concerns with the grant of a consent subject to getting a further approval under a different piece of legislation. Here I note that the legislative scheme specifically provides for this by exclusion of s 138 Roads Act consents from the operation of the EPA Act's integrated development provisions in instances where a council is the roads authority (s 4.46(3) of the EPA Act).
As indicated above, it does not seem to me that circumstances where there is no final resolution of the environmental factors relating to proposed development should be seen as a criticism of the consent. The requirement under s 4.15(1)(b) of the EPA Act, is the "taking into consideration" of likely environmental impacts. It is apparent that this has occurred in that, with for example Conditions 17 and 25, a pathway for the resolution of these matters is established.

Condition 17 as a commentary, or advice, rather than a consent condition.

Condition 17 goes considerably beyond giving advice. It explicitly indicates the stamping of plans is for the "general footprint of the driveway and location of the turning area in the road reserve only and is not an approval for the levels or design of the driveway", and that a future design "must minimises disturbance, cut, fill and tree impacts as far as practicable in accordance with BM DCP 2015 Part C1.1". Similarly, Condition 25 indicates that there is no consent to the removal of 128 trees (as has been indicated in the applicant's documentation). In both instances, the elected pathway in the consent notice involves a s 138 Roads Act consent, relating to which Council is the approval body.
The above commentary indicates my reasoning behind the conclusion that Conditions 17 and 25 are within power and are for a planning purpose relevant to evaluative criteria under s 4.15(1) under the EPA Act. They establish a pathway for the resolution of the relevant environmental concerns relating to the provision of a private driveway through a consent under s 138 of the Roads Act. Responsibility for private driveway works
Condition 17 indicates that the new private driveway "shall be constructed by the applicant at the applicant's expense".
The applicant considers that responsibility for construction costs of the road need no mention in the consent, or that such costs are properly considered as costs to Council under the Roads Act. Reference was made to a number of provisions in the Roads Act, including the provisions of s 217(2) indicating an amount of contribution to certain costs of "not more than half the cost".
Council made clear it has no intention to construct the access within the unmade section of Surrey Street and has drawn to my attention the findings of Shellharbour Municipal Council V Rovili Pty Ltd (1989) 16 NSWLR 104 (Rovili) (108F-109F): "The common law principles that the owner of land adjoining a highway has a private right of access to the highway from any part of his premises and, subject to special statutory provisions, is entitled to the removal of obstructions that might interfere with that right, cannot be invoked to support a claim requiring a local authority to consent to or provide physical access where none exists."

Appropriate for consent to indicate applicant's responsibility for private driveway construction

It is clear from Rovili that the right is one of access. There is no obligation upon Council to carry out physical works to facilitate or improve the means of access to the site. It seems to me it is fair and reasonable in the circumstances and there is a planning purpose to the requirement for the applicant to provide its physical access if it wishes to go ahead with development for the proposed dwelling house (ie in acting upon the development consent).

Maintenance of the private driveway.

Condition 23 would, via a positive covenant, make the "proprietor" responsible for maintenance of the private driveway.
The applicant argues that the Roads Act places limitations on the imposition of maintenance costs. Section 142 is relied upon, which provides in part as follows: "(1) A person who has a right to the control, use or benefit of a structure or work in, on or over a public road - (a) must maintain the structure or work in a satisfactory state of repair, and (b) in the case of a structure (such as a grating or inspection cover) located on the surface of the road, must ensure that the structure is kept flush with the surrounding road surface and that the structure and surrounding road surface are so maintained as to facilitate the smooth passage of traffic along the road, and the person is, by this section, empowered to do so accordingly. Maximum penalty - 30 penalty units. (2) Subsection (1) applies to all structures and works in, on or over a public road, including structures and works for which there is no consent in force under this Division. (3) Subsection (1) does not apply to a person whose right to the control, use or benefit of a structure or work consists merely of a right of passage that the person has as a member of the public or a right of access that the person has as the owner of adjoining land."
The applicant argued that s 142(3) of the Roads Act provides relief from any requirement for maintenance of the private driveway and associated structures upon a proprietor of the site because, in this instance, the "benefit … consists merely of a right of passage that the person has as a member of the public or a right of access that the person has as the owner of adjoining land".
Council argues that s 142(3) does not apply and calls on evidence of Ms Hawken (Tcpt 3 July 2024 p 79 (10-50), p 69 (41-49)): "… Section 142 is a provision that acts on its own. It's a provision that provides for an offence in relation to non compliance with it. The position of the council here is that this is a situation where what is being provided here is not a road to the specification and requirements of what the council normally requires for a public or a formed road. It is an accessway to this development that will include structures potentially including retaining walls and other matters that is serving not as a formed public road but as an access track or an accessway to the development site itself for which the application is the only beneficiary and should be responsible for its maintenance."
Ms Hawken's evidence also included the following (Ex p 5): "…This will be a substantial driveway access, possibly incorporating retaining structures and other structures such as a vehicle barrier at the end. From time to time, the driveway itself and these associated structures will require maintenance or replacement. The owners of Lot 6 will be the only beneficiaries of the vehicular access, and it is appropriate that they maintain it in a safe condition, rather than the cost of maintenance being shared by ratepayers in general who do not use or benefit from the access. Council funds should not be spent on what would essentially be a private asset."

Appropriate for consent to indicate applicant's responsibility for private driveway maintenance

It seems obvious and reasonable to find, firstly, that there is a requirement for ongoing maintenance of the private driveway and its associated structures. This is a normal requirement in regard to infrastructure and has a planning purpose. In this instance, this is to benefit the occupants of the site generally into the future and to enable emergency vehicle access, most specifically relating to bushfire protection, including should the proposed dwelling fall into difficulty on that front. The fact that the private driveway is located on land not owned by the proprietors or occupants of the site is a specific factor relating to this development where to provide particular clarity on who is responsible for maintenance makes sense.
Clarity is one thing, but the applicant also argued that it was: (a) fair and reasonable mindful of s 4.15(1) of the EPA Act, and (b) essentially a lawful requirement under the Roads Act, for Council to take on this maintenance responsibility. Initially, I will stay within the confines of the EPA Act, which is at the centre of the evaluation of the modification application before me.
It is reasonable to see development of the site for the purposes of the proposed dwelling (and associated developments) as a non-standard scenario. The scenario here can be compared and contrasted with the more common scenario relating to housing development where land subdivision has brought about the physical provision of vehicle (and pedestrian) access, and what might be thought of as standard maintenance arrangements, which commonly includes a local council responsibility for the carriageway, street drainage and the like and private responsibility for maintenance of individual nature strip areas.
In this instance, the site does have a cadastral boundary to what we often call a road reservation. But this road reservation does not involve a vehicular carriageway at this point. Rather it is in a largely natural state, comprising significant native vegetation and involving significant slopes (around 15% slope near the boundary with the site and falling away steeper again to the east, a significant factor in relation to finishing off the private driveway). As indicated in expert evidence, the private driveway will require purpose-designed structural and vegetation management responses.
That is, it is quite easily recognisable that this site has serious idiosyncratic accessibility constraints. While the public burdens associated with the construction of this driveway would be relatively high, the public benefit associated with the construction of the driveway (to access a dwelling house) is very modest. With a view to what is fair and reasonable, and mindful of s 4.15(1)(e) of the EPA Act (public interest considerations), the onus on the quite complex analytics and ultimate provision of road access to the site should lie with the site itself, rather than a local council. I cannot see why it should not be that the same logic applies with respect to maintenance. That is that, essentially, responsibility for both the construction and ongoing provision (including maintenance) of the private driveway should rest with the applicant and in an ongoing sense with the development site.
With respect to the applicant's reference to s 142(3) of the Roads Act, I would note that this provision would not generally be seen as falling within the heads of consideration for evaluation of development applications and modification applications under the EPA Act. That is to say, my finding that the requirement for maintenance is reasonable in the consideration of this modification application under the EPA Act would not, in my opinion, be set aside by the provisions of s 142(3) of the Roads Act. However, even if it were to, it seems to me the intention of s 142(3) of the Roads Act is to prevent the imposition of maintenance burdens on members of the public or adjacent land owners from ordinary right of passage on a public road. The scenario here is different, the particulars require a particular design response which go beyond the ordinary setting which I see as behind the provision.

Council responsibility to remove trees within Surrey Street road reservation

The applicant also referred to Rovili and the Roads Act to suggest that there is a responsibility upon Council to remove the trees within Surrey Street. The first reason refers back to the citation from Rovili above [55]. It was argued that the owner of land is entitled to the removal of obstructions that might interfere with right of access and in this instance the existing vegetation was constraining that access. The second reason related to bushfire protection (Tcpt 3 July 2024 p 72 (36-49)): "As I understand it there is no suggestion by the fire authorities in respect to the road reserve. What we're saying there is that the bushfire which is much greater risk than all the other risks combined, in our view, would mitigate that some removal of vegetation and some removal of trees is necessary to optimise the balance between ecology and bushfire. We don't have a proposal for specific removal. We simply say that whereas one tree has been shown to be a concern, and sensibly that tree should receive attention during the development of the details, and if an appropriate and minor amendment to the details can be made to save or less severely impact that tree it should be done, but we say you should have some confidence that if the tree was removed there would be some justification for it on a bushfire assessment risk, and I suppose we can only rely in respect to the evidence to that submission on your careful inspection of the property yesterday, where you have perhaps got a sense of the fuel load and the lack of fire provision in the area generally."
Under cross examination on this topic Ms Nagle argued: "Because we're a city within a World Heritage area with bushfire protection requirements, and from the environmental impact assessment perspective, we ensure that development consents are compliant with what the Rural Fire Service legislation and planning for bushfire protection requires. But we have to balance bushfire protection with biodiversity conservation. So we ensure an approval complies, but that we can get conservation. So it would be unusual to request further clearing beyond what the Rural Fire Service would be conditioning because they're the experts."

No power or justification to require Council to remove trees within Surrey Street road reservation.

In the proceedings before me, the Court has no power to direct the Council to remove trees within Surrey Street were this seen as an appropriate response to common law principles under Rovili or the provisions of the Roads Act. Without any evidence to the contrary, it seems reasonable to take the advice of the RFS with respect to requirements for removal of vegetation for bushfire protection purposes in relation to this matter. Phasing of private driveway works with respect to construction of dwelling and garage Condition 18 is concerned with the phasing of the construction of the private driveway. The condition currently requires construction of the private driveway prior to commencement of works within the site itself (which would include construction of the dwelling, garage and access, along with associated earthworks). The applicant argued this to be inappropriate. I understood there to be three main reasons. First, is because of the fact that "tracked" construction vehicles would be required to undertake works within the site (ie after the construction of the private driveway under the consent's logic), and finalisation of the driveway construction is best undertaken after there is no longer a need for tracked vehicles to use the private driveway. Second is that there is no environmental benefit. Third relates to a major associated increase in construction costs. The applicant made quite detailed submissions in respect of construction phasing and environmental impact relationships which warrant citation (Tcpt 3 July 2024 p 68 (10-50), p 69 (1-15)): "… So we say that we rely on the test in which you've heard that it conveys no protection to the environment. This clause provides no protection to the environment until the final coat goes on. When the final coat goes on and then it doesn't protect it simply is a restraint, a restraint that provides no benefit. The situation is the fact that that private driveway should be constructed, is agreed. The situation is that it should be constructed and finished before an occupational certificate is issued. But it shouldn't be that it's inserted into disrupt significantly the structure of how one would usually go about the construction of that dwelling. And we say that's fairly simple, you do your excavation, you do any structural works to lead the cross-trains, in otherwise, in accordance with detailed plans and they've been submitted either to a certifier or to the council, and the situation is that, you do that excavation, you then lay a sub-base, so you're laying crusher rock of some description, and then a base, of course. And on that basis, perhaps at the sub-base, perhaps at the base course condition, you'll bring in equipment of a track nature, and wide tracked, because it's safer to work on slopes, the tracked vehicle, and you're probably going to have tracked vehicle do much of the excavation. That track vehicle then proceeds to the end of the access way which will end where the carport is located, in the natural course of things, and thereafter, is able to contribute to the removal of trees, the excavation of foundations, the general running of the construction process. Particularly where you need tracked vehicles on the construction of the dwelling, the finished surface of the access road gets to be a real problem. If it were a flat side, you could probably accommodate it by sending in the tracked vehicle around the edge of the concrete. And therefore not damaging the concrete. That's not possible here, because we have a hammer head in the way, which prevents it going across except there. Initially the traverse below the hammer head is not easy and not safe. So we say the proper way to access this block is through the construction of the access way and that there shouldn't be the unnecessary and wasteful imposition of that. We say, we submit, that the evidence you heard doesn't justify that condition. And we say, that from an ecological point of view, it isn't a sensible provision, it's not a sustained provision. The reason we say that is that if you're going to prevent a downstream slope from run off, then the protection should span an effective area of that exposure. So if you put a sediment against there you'd expect the sediment fence to go from one end of the exposed slope right across the slope and be turned up at every end. Being the situation is to stop an ecological barrier at a titled barrier, at a titled boundary demonstrates that the situation is that it's not required for environmental purposes. Because what one is saying is, when you're constructing the road on the road reserve, you should do it all up to concrete to the title boundary, but when you get into the property there's no continuing restraint on how you conduct it. Logically if this was sustainable you would have a provision that said, "It'll have to be constructed up to the carport, the carport will have to be constructed." Then at least you would get to a position which would protect the environment if it did protect the environment. But that's not said here because this is simply an ad hoc restriction on construction for no benefit. The other aspect is we've covered is that, condition 12 provides a much more simple and sensible provision. And additionally, any management plans for the containment of run off and erosion would also cover it. They're best to cover it and the imposition of this particular introduction to condition 18 is unnecessary and, in our view, untenable."
Ms Hawken's evidence was that (Tcpt 3 July 2024 35 (38-47)): "…The access along the road reserve is relatively difficult when you get to the section that's approaching the dwelling. For environment reasons it's difficult to see how a temporary access could be installed which would not result in sedimentation of the downstream environment, particularly given there's quite a lot of run off coming off the road at the moment along various channels, and the matter of gaining access across the gully and into the dwelling for environment reasons, and because of the need to design the roadway for a 15 tonne vehicle which has been imposed by the RFS, it was felt that the construction access should be along the finalised road/driveway already constructed."
Ms Hawken emphasised a number of times that this was not a standard property (Tcpt 3 July 2024 37 (44-45)): "It's not a normal lot. So it's - it's a - it's a very difficult - you've got those rock shelves at the end and the gully to be driven over."
It was agreed on the part of the experts that the reason for the imposition of the requirement for construction of the private driveway prior to commencement of works within the site itself was environmentally based. As put by Ms Nagel (Tcpt 3 July 2024 41 (37-46)): "So from an environmental assessment perspective, it's considered warranted by myself because of the condition of the land, the slope, the vegetated nature of the land, and the surface water patterns at the moment, some of which aren't entirely known, they're not mapped or identified on plans, but I'm aware that there's multiple channels that might traverse through the road reserve, so how to manage a temporary access and not interfere with the surface flows in an adverse way is a question to be answered. I don't have information to answer that, but you would expect if those flows were interfered with, then it could be negative to the environment because you've got a creek downstream."
The applicant was essentially proposing a temporary access configuration to better coordinate heavy vehicle requirements, including relating to the construction of the dwelling house. Council indicated that there were no proposals for such a temporary access provision before it, and if a temporary access arrangement were proposed this too would require a Roads Act approval. The applicant saw the temporary access arrangement as one that could be managed under the development consent as a condition requiring particulars to the satisfaction of the certifier prior to the issue of a construction certificate (Tcpt 3 July 2024 40 (11-17)).

Consent's approach to phasing of private driveway construction is appropriate

The expert evidence in this case supports the appropriateness of the phasing of construction as adopted in Condition 18. While I acknowledge there may be a suitable alternative means of arranging for construction access (including for tracked vehicles accessing the site for dwelling construction purposes) involving a temporary access configuration, there are no details on this in the material before me. In the circumstances of this case, and particularly due to the environmental sensitivity of any works with the road reservation, there is a need for a considerable degree of attention to detail in all construction works. The current proposal does not make provision for temporary access construction. Were the applicant to seek to pursue this it would need to submit it for consideration of the consent authority, likely by way of an application for modification of the current consent.

Other modifications to conditions.

There were a number of other changes to conditions proposed by the applicant which I will address now.

Approved plans.

With respect to Condition 1 and the approved plans, the parties agreed, and I accept, that road access plans dated May 2018 and prepared by Marblaze should no longer be referenced in the table of approved plans.

Indemnification of Council from future claims.

With respect to Condition 16, and concerning indemnifying Council from future claims related work within the road reserve, the applicant also sought inclusion of a phrase, as follows, which has been agreed by Council, and which I also accept: except those claims arising from the Council's negligence or default

Certain provisions in Condition 17.

Condition 17 is concerned with the detailed design of the private driveway within the Surrey Street road reserve, and its consent. The larger aspects of the dispute have been considered earlier. I can note here that there was agreement that certain matters of detail need not be included as development consent condition, specifically certain provisions relating to the surface of the driveway and servicing conduits. I accept this agreed position of the parties.

Certain provisions in Condition 22.

Condition 22 is concerned with services. In relation to the "sewer system", it was agreed that the term "gravity" would be deleted as a prefix provision.

Certain provisions in Condition 23.

Condition 23 is concerned with maintenance and access over the private driveway and the capacity of fire fighting vehicles to turn for forward exit. Council's version of the condition included reference to "public right of access (having) been registered over the property". There was also provision for a positive covenant "registered over the property", which would include but not be limited to the following: "The Proprietor of the property shall agree to be responsible for the maintenance of the private driveway and other associated structures".
A further provision with Council's Condition 23 referred to right of access over the turning bay to be "generally consistent with the wording in Part 1 of Schedule 4A of the Conveyancing Act 1919". I understood this latter factor could involve fire fighting vehicles accessing into the site, if the turning movement required this.
Council agreed to the applicant's request for removal of the reference to "public right of access". The applicant indicated satisfaction with the condition with the exception of the requirement for maintenance responsibility (Tcpt 3 July 2024 p 69 (23-25) and Ex B Condition 23).

Waste services.

Condition 24 is concerned with waste services, and in particular arrangements for kerbside bins. Council agreed that this condition could be deleted.

Certain provisions of Condition 26 relating to maintenance of APZs.

Condition 26 is concerned with bushfire asset protection zone (APZ) management. The point of dispute relates to the reference to required maintenance of required fuel reduction within bushland areas of the APZ. Council's wording indicates this to occur "for the life of the development". The applicant argues that it is clearer if the following bracketed text is added to Council's phrasing: " (or another development approval varies such requirement)".
The applicant points to the fact that there may be a future development application for a granny flat or the like which could, reasonably, alter the APZ particulars. While I note the evidence of the experts, that the normal approach would involve that future consent, itself, overriding these conditions; I agree with the applicant that its suggestion makes things clearer.

Other matters

There are no other contested issues in this modification application. I am mindful of the relevant considerations under s 4.55 of the EPA Act and have reviewed Council's evaluation report in that regard (Ex 2 Tab 21). It is clear that the development to which the consent as modified relates, remains as essentially a dwelling house and is substantially the same development as that for which consent was originally granted, with the changes only involving factors relating to the private driveway.
The changes which would be incorporated into the modified consent, in accordance with the findings of this judgement, are of minimal environmental impact.
I understand that notification has accorded with requirements, and have considered the substance of the two submissions which were received by Council (Ex 1 par 38). One of these submissions raised concerns relating to disturbance of native vegetation which is already under consideration. The other matters raised do not bring significant new points requiring attention in this judgement.
In respect of s 4.55(3), I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. Here I rely on the explanation of relevant provisions as provided by Council when taking me through the particulars of its bundle of documents (Ex 2). In respect to this, no further substantive points require attention in this judgement.
Further in regard to s 4.55(3), I have given consideration to the reasons given by the consent authority for the grant of the consent that is sought to be modified (Ex 3 p 84). Nothing raised in these reasons has significant influence on the decision I make in this matter.

Conclusion

The modifications proposed by the applicant warrant partial consent as outlined in the findings above.

Orders

The Court orders: 1. The appeal is upheld in part. 2. Development Consent X/508/2018 is further modified in the terms in Annexure A. 3. Development Consent X/508/2018 as modified by the Court is Annexure B. 4. The exhibits are returned with the exception of Ex 1, A and D, which are retained.

Annexure A Annexure B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2024

At a glance

Court

Decision date

Source

Judgment (30 paragraphs)

Parties

Cases Cited (2)