Appeal Upheld: Conditions of Consent Modified for Road Works and Drainage

The court upheld an appeal and modified conditions of consent related to road works and drainage, ensuring they served a planning purpose and were reasonable.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] v [NAME] [2006] NSWLEC 764

APPLICANT [NAME] PARTIES : RESPONDENT [NAME](S) : 10639 and 10549 of 2006

CORAM: Bly C

KEY ISSUES: Appeal :- Modification applications, subdivisions, conditions of consent, drainage, footpath and road works.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Newbury District Council v Secretary of State for Environment 1981 AC 578

DATES OF HEARING: 14/11/2006 and 15/11/2006

EX TEMPORE JUDGMENT DATE : 11/15/2006

APPLICANT [NAME], barrister Instructed by [NAME] LEGAL REPRESENTATIVES:

RESPONDENT [NAME], solicitor of [NAME]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Bly

15 November 2006

10639 of 2006 and [NAME] v [NAME] 10549 of 2006 Council This decision was given extemporaneously. It has been revised and edited prior to publication .

JUDGMENT 1 These two appeals involve the same applicant and involve amendments to the following unrelated conditional development consents as issued by the Bellingen Council: + Development Application No 2005/DA-57 for the subdivision of land at 17-[ADDRESS], Dorrigo, ("the [ADDRESS] consent"), + Development Application No 2005/DA-35 for the subdivision of land at [ADDRESS], Dorrigo, ("the [ADDRESS] consent"). [ADDRESS] consent was granted on 22 June 2005 and involves the subdivision of Lot 104 DP 752813, which has an area of 9,769 sq m, into four lots. This site is presently developed with three houses.

[ADDRESS] consent was granted on 8 August 2005 and involves the subdivision of Lot 1 DP 758357, which has an area of 1025 sq m, into two lots. This site is presently developed with one house.

4 The applicant has now appealed against conditions 9 and 10 of the [ADDRESS] consent and Conditions 17 and 18 of the [ADDRESS] consent which conditions require the provision of certain road works including pavement widening, guttering, drainage and footpaths.

5 The council has now agreed that these conditions can be amended so as to exclude the footpath requirement in Condition 10 of the [ADDRESS] consent.

6 The applicant has now agreed to the condition in the [ADDRESS] consent involving the provision of roadside drainage comprising the construction of a drainage swale but opposes the road pavement widening requirement.

7 The road pavement condition in effect requires that one side of [ADDRESS] be widened by about 1 m, mainly over the length of the frontage to proposed Lot 4. Unlike the other three lots, which will resultantly be occupied by one of the three existing houses, Lot 4 will be a vacant lot. [NAME], council's development assessment engineer, explained that the provision of these works would be consistent with council's policy that requires such works to be provided in conjunction with new subdivisions. The works are supported, taking into account the additional traffic likely to be generated by the development and the presently unsatisfactory drainage arrangements. It was submitted on behalf of the applicant that the extent of works required by the condition was excessive taking into account that the subdivision only creates one vacant lot. 8 In this context my attention was drawn to the so-called Newbury criteria regarding appropriate conditions of development consent, (see Newbury District Council v Secretary of State for Environment [1981] AC578). These tests require that for a condition to come within power it must fulfil three cumulative conditions: (1) it must be imposed for a planning purpose; (2) it must fairly and reasonably relate to the development for which permission is being given; and (3) it must be reasonable.

9 Applying the first of these tests there can be no doubt that the provision of road and drainage works is a planning purpose as a matter of general principle and in particular in this case involving the [ADDRESS] subdivision. As for the second and third tests, the proposed widening of the road pavement relates to the subject site being adjacent to it and more particularly is almost entirely limited to the frontage of the proposed new vacant lot. Plainly the subdivision will, once developed, generate additional traffic and taking these matters into account I accept the submissions made on behalf of the respondent that these tests are also met.

10 I also accept the evidence of [NAME] that the longstanding practice of providing associated works and facilities at the subdivision stage of residential development, rather than at the later construction of dwelling stage, should not be changed for this development. In my opinion the principle applies notwithstanding that this is, in part at least, a subdivision associated with existing dwellings. In these circumstances Condition 9 in the [ADDRESS] consent should be retained.

11 The applicant has now agreed to the road widening and guttering requirement in Condition 7 of the [ADDRESS] consent but is concerned about the cost of providing engineering drawings as provided for in Part C of the condition. In my view such drawings are an essential requirement being directly associated with these works and should be provided.

12 The applicant objects to Condition 18 in the [ADDRESS] consent that requires the construction of a footpath from the existing footpath in [ADDRESS] along [ADDRESS] for a distance of about 50 m.

13 It was submitted on behalf of the applicant that it was unreasonable to require the provision of this length of footpath, particularly given the extensive works required as a result of the topography near the north-western corner of the site. Moreover about half the length of the footpath is across the frontage of the lot containing the existing dwelling, which lot already has a footpath across its frontage in [ADDRESS]. It was also submitted that because council has no program for footpath works in [ADDRESS] generally, and because no footpaths exist in [ADDRESS], there is no justification for this requirement.

14 [NAME] contended that council's Pedestrian Accessibility and Mobility Plan, and Bicycle Plan, supports in principle at least the provision of footpaths and that it would be logical to provide a footpath from the new vacant lot in this subdivision down to the [ADDRESS] footpath. He did note however that the accessibility plan does not propose any footpath works along [ADDRESS], this indicating a very low existing demand beyond that created by the proposal.

15 Again applying the first of the Newbury tests there can be no doubt that the provision of footpaths is a planning purpose as a matter of general principle and in particular in this case. As for the second and third Newbury tests, the proposed footpath relates to the subject site, being adjacent to it and would eventually be utilised by the residents of the proposed new vacant lot. However, it extends well beyond the frontage of this lot and alongside the lot with the existing house which already has a footpath in [ADDRESS].

16 Once developed, the new lot will generate additional pedestrian traffic. Despite this, and taking all of the above matters into account, I accept the submissions made on behalf of the applicant that the reasonability test in Newbury is not met. I have reached this conclusion simply because it would not be reasonable to require the construction of about 50 m of footpath in the context of the creation of one additional lot with a frontage of 27 m.

17 Finally, I would comment that the resolution of these issues might have been more readily effected if the council had a s 94 plan which deals with contributions for roadworks, footpaths and the like, particularly in areas that are already partly developed and where existing facilities such as these need to be upgraded or extended as a result of subdivisions such as these.

18 The orders of the Court in relation to the [ADDRESS] matter are:

1. The appeal is upheld.

2. Development consent No. 2005/DA-57 for the subdivision of land at 17-[ADDRESS], Dorrigo, is amended by the deletion of Condition 10.

3. The exhibits are returned. 19 The orders of the Court in relation to the [ADDRESS] matter are:

1. The appeal is upheld.

2. Development consent No. 2005/DA-35 for the subdivision of land at [ADDRESS], Dorrigo, is amended by the deletion of Condition 18.

3. The exhibits are returned.

___________________ [NAME] Commissioner of the Court As/rjs/ljr

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