Bopping v Palerang Council [2011] NSWLEC 1319

Bopping v Palerang Council [2011] NSWLEC 1319

Because the proposed dwelling would increase use of an unformed section of O'Briens Road that was not capable of safe all weather two-wheel drive access, a condition requiring road work was reasonably related to the development and consistent with the LEP requirement for adequate legal and practical vehicular access. However, requiring upgrade to Type 1 road standard was not shown to be necessary; more limited gravel works and work to the creek crossing would provide safe all weather access at a more proportionate cost. The consent could therefore be modified by deleting conditions 21 and 27, amending condition 52 as agreed, and amending conditions 20, 22, 23, 24, 25 and 26 to reflect...

Jurisdiction
Australia
Judgment Date
06 October 2011
Procedural Posture
Class 1 Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Determination of a Development Consent Modification Application / Principal Ex Tempore Judgment After Unsuccessful S 34 Conciliation Conference; Parties Directed to Provide Amended Conditions
Outcome
Parties directed to provide amended conditions; orders to be made in chambers thereafter.
Legal Topics
['modification of Development Consent for Erection of Manufactured Dwelling' 'validity and Reasonableness of Conditions Requiring Road Upgrading' 'adequate Legal and Practical Vehicular Access to Rural Dwelling House' 'conditions Relating to Public Road Works and Maintenance']
['planning and Environment' 'development Consent Modification' 'road Access Conditions'] ['modification of Development Consent for Erection of Manufactured Dwelling' 'validity and Reasonableness of Conditions Requiring Road Upgrading' 'adequate Legal and Practical Vehicular Access to Rural Dwelling House' 'conditions Relating to Public Road Works and Maintenance']

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Procedural Posture

Class 1 Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Determination of a Development Consent Modification Application / Principal Ex Tempore Judgment After Unsuccessful S 34 Conciliation Conference; Parties Directed to Provide Amended Conditions

Legal Issues

  1. 1 ["Whether conditions requiring upgrading of O'Briens Road from Chainage 690m to Chainage 1950m reasonably related to the modified dwelling proposal." 'Whether the requirement to upgrade the road to a Type 1 road, or undertake lesser works, imposed an unreasonable burden on the applicant.' 'Whether practical vehicular access under cl 21(2)(c)(i) of the Tallaganda Local Environmental Plan 1991 required all weather two-wheel drive access.' 'Whether the consent as modified would be substantially the same development as that for which consent was originally granted under s 96(2)(a) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Because the proposed dwelling would increase use of an unformed section of O'Briens Road that was not capable of safe all weather two-wheel drive access, a condition requiring road work was reasonably related to the development and consistent with the LEP requirement for adequate legal and practical vehicular access. However, requiring upgrade to Type 1 road standard was not shown to be necessary; more limited gravel works and work to the creek crossing would provide safe all weather access at a more proportionate cost. The consent could therefore be modified by deleting conditions 21 and 27, amending condition 52 as agreed, and amending conditions 20, 22, 23, 24, 25 and 26 to reflect...

Court Disposition

Parties directed to provide amended conditions; orders to be made in chambers thereafter.

Orders

  • ['The parties are directed to provide amended conditions to reflect the findings.' 'Conditions 21 and 27 are to be deleted.' 'Condition 52 is to be amended as agreed between the parties.' "Conditions 20, 22, 23, 24, 25 and 26 are to be amended to reflect the Court's conclusions concerning limited road and creek...