•

Condition 5 is deleted and replaced with the following:

Prior to the commencement of the development, the permit holder must submit to the Responsible Authority a report prepared by a suitably qualified and experienced civil engineer (or other person to the satisfaction of the Responsible Authority) detailing works required to provide for all weather road access to the subject land. Once to the satisfaction of the Responsible Authority, the works must be completed in accordance with the report prior to the commencement of the construction of the dwelling hereby approved to the satisfaction of the Responsible Authority.

•

The word "Vicroads" in Condition 4 is deleted and replaced with the word "Council".

Mr T Sargeant in person, accompanied by Mrs Sargeant.

Mrs M Grainger, Manager Statutory Planning and Building Services.

1 This is an Application under Section 80 of the Planning and Environment Act 1987 brought by T & F Sargeant seeking review of a condition included on Permit No. 2004/108 issued by the Corangamite Shire Council ("the Council") on 29 September 2004. The Application was lodged on 29 November 2004.

2 The condition in contest states:

5. Prior to the use of the dwelling the dry weather only section of Bend Road (approximately 2km's) must be upgraded to an all weather road with a gravel re-sheet to a minimum depth of 100mm with approved material to form a pavement 4.0 metres wide and 0.5 metre wide shoulders on either side with table drains, at the full cost of the owner, to the satisfaction of the Responsible Authority.

3 The subject site is located on the north side of Bend Road. It has an area of approximately 35.5 hectares. The land is quite flat and there is a plantation to the western portion of the property. The surrounding land comprises dairy farms with two houses having access off Bend Road, at its western (elevated) end. Bend Road is a government road. It is formed with gravel and is wider at its western end, close to the dwellings and milking sheds, and then falls to the east where the road condition deteriorates. Bend Road is a no through road, terminating at the Mt Emu Creek although I was advised that vehicles can cross the ford(s) when the water level is low. A sign at the western end of Bend Road states that it provides dry weather access only. I understand from submissions that the road is used by the adjacent land owners for farming activities and servicing authorities as well as by others accessing the creek for fishing and shooting.

4 The Permit allows the use and development of the subject land for a dwelling and shed. The dwelling would be located around 50 metres from Bend Road, 300 metres from the creek and 450 metres from the western boundary.

5 The following provisions of the Corangamite Planning Scheme ("the Scheme") are relevant to the consideration of this Application:

•

The subject site is zoned Rural pursuant to Clause 35.01. A permit is required to use and develop the land for a dwelling. The decision guidelines of Clause 35.01-6 require consideration of the provisions of Clause 65, as well as a detailed range of other matters. Specific provisions of the Clause relate to a dwelling, as discussed below.

•

An Environmental Significance Overlay (Schedule 1) applies to the subject land's Mt Emu Creek abuttal but that is not critical to the matter in dispute in this Application.

•

The provisions of the State and Local Planning Policy Frameworks including Clauses 11, 15, 19.03, 21, 22.01-4 (Road Construction).

•

Clause 65 (general decision guidelines).

6 At the Hearing, written and oral submissions were presented by both parties. I also visited the site and locality prior to the Hearing, as I advised those present at the Hearing. Having considered the submissions having regard to the policies, objectives and decision guidelines of the Scheme I have decided to vary the decision made by the Responsible Authority. The following summarises the reasons for my decision. I do not recite all of the material presented, although I do refer to some of the main points.

7 Mr Sargeant explained that he had owned the subject land for some 29 years and until recent years, all year access was possible to the property via Bend Road. At the time the road was better maintained, two vehicles could pass, which is now not the case. He said that the road is now not maintained by the Council and when works were last done, the graded material was moved to one side creating a hollow down the centre of the road. Poor maintenance has contributed to the deterioration of the road, Mr Sargeant submitted. He requested that the road be reinstated to its previous condition and Condition 5 be deleted from the Permit. Mr Sargeant said that it would not be fair to require one land owner to replace or restore the road that is used by others and Council has allowed to run-down. He said that he was concerned about the potential for access by emergency services (such as an ambulance) and felt that classification of the road by the Council was not correct and the standard required was not reasonable.

8 For the Council, Mrs Grainger submitted that the condition is reasonable as the road is not currently all weather standard and Clause 35.01-2 of the Scheme requires all weather access to be available for a new dwelling. She stated that the road is classified by Council as a "limited access road/track" in its Road Management Plan as it currently serves primarily undeveloped properties with less then 5 daily vehicle trips on average and may be seasonally closed. She stated that except for the construction of the Sargeants' dwelling there is no need to upgrade the road as it provides adequate access for stock movement and fire access during dry months.

9 Mrs Grainger said that Bend Road has never been constructed to a standard that is anything above the Council's classification. Mrs Grainger said that the Council had been consistent in its approach that permits requiring road works be undertaken at the full cost of the developer. She stated that the Council had voted on a motion for it to construct the road, and that had been lost. A resolution to impose a Special Rate to require all owners to contribute to the cost of the road had also been lost on the basis that a majority of support would not be gained from the four owners that would be affected.

10 It is a requirement of the Scheme that all weather access be available for a dwelling. A specific provision within Clause 35.01-2 is that a lot may be used for a dwelling provided that "access to a dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles to the satisfaction of the Responsible Authority" (my emphasis). This is a mandatory requirement, although the form of the road is subject to the discretion of the Responsible Authority. Therefore, without all weather access being provided the dwelling can not proceed.

11 Bend Road is a public highway for which the Council is responsible. The condition of the road is presently such that the Council considers it does not provide all weather access and there is an obvious concern by the Applicant about the road's suitability for emergency and like vehicles. I also consider that the road condition must be improved if the dwelling is to proceed.

12 The contested condition requires the Applicant to construct approximately 2 kilometres of road to access the dwelling approved by the Council. One can well understand why Mr Sargeant seeks a review of Condition 5 which, based on a ballpark figure referred to by Mrs Grainger could be $70,000 - $80,000, contrasting with a quote of around $30,000 obtained by the Applicant involving grading only. There is also the point as to whether the Applicant should be obliged to make a contribution at all, given that the road is a Council responsibility. The problem is that without all weather access the dwelling found to be acceptable by the Council can not proceed. I have no power to require or to direct the Council to improve the road.

13 The Council seeks the road to be constructed to a standard that would elevate the road from a "Limited Access Road/Track" to an "Access Road" involving considerable works including drainage. While Council wishes to apply a standard that accords with its Road Management Plan there is an ability to achieve all weather access without the extent of works required by Condition 5. The Road Management Plan foreshadows that[1]:

It is not intended that all roads will comply with adopted Standards, however any new or refurbished work should be constructed to the desirable standard, where practicable. In instances where adopted standards cannot be achieved, professional judgements will be adopted.

14 There is no information before me to conclude that the Council has canvassed alternative treatments that might depart from its desired standard.

15 An objective of Clause 22.01-4 is to ensure that the improvement and upgrading of roads and infrastructure is commensurate with the expected impacts of proposed uses and developments. It is policy, inter alia, that assessment of the appropriateness of new use and development and the proposed impacts in terms of road construction and access take into account:

•

the impacts that may occur due to the proposed use and development of land;

•

the likely affects that new uses and developments of land may have on the future surface and condition of the road.

16 [The standards at 22.01-4 apply to new roads, rather than existing roads, and I have therefore not been guided by this part of the policy].

17 Having regard to these local policy considerations, I am persuaded that for a single dwelling the standard required by Condition 5 is unfair and unreasonable. The works would upgrade the road to a higher standard than is required for a single dwelling such that it would be suitable for "access to limited local rural industries including farm produce, quarry, forestry and tourist activities"[2] and potentially up to 100 vehicles per day - entirely at the Applicants' cost. The Applicants are not the sole users of this road and the additional load placed on Bend Road by one dwelling must be considered in the context of existing users with farm equipment, farm vehicles and stock, as well as servicing authorities and users of the creek.

18 I am unable to accede to the Applicants' request to direct Council to upgrade the road as I have no power to do so in absence of Council's consent to undertake works. However, the circumstances are such that a departure from the Council's position is clearly warranted based on professional assessment. I will vary Condition 5 to enable the Applicant to obtain and submit to the Council an expert report detailing works required to provide for all weather road access to the subject land for the approved dwelling. The works may well be considerably less than demanded by the Council. Once to the satisfaction of the Responsible Authority, the condition will require that works must be completed in accordance with the report prior to the commencement of the construction of the dwelling.

19 I appreciate that this does not resolve the matter entirely and leaves open the potential for debate between the Council and Applicant. I am concerned about that but am not in a position to do more. However, if there is a dispute in relation to the condition then it is open to the Applicant to lodge proceedings under Section 149 of the Planning and Environment Act 1987 to have the matter determined by the Tribunal.

20 For the above reasons, I will vary the decision of the Responsible Authority. I will also direct that Condition 4 be corrected as it erroneously refers to Vicroads rather than Council, as noted at the Hearing.

[1] Road Management Plan November 2004 Section 8 at page 7

[2] Road Management Plan November 2004 Section 7.1 at page 6