Posted on October 24, 2024 by Katie Mortimer and Samantha Hainke
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The LEC describes what constitutes ‘adequate arrangements’ to make essential services available when required
A number of local environmental plans have an ‘essential services’ clause that requires a consent authority to be satisfied that services that are essential for development (commonly the supply of water or electricity, disposal of sewage, etc.) are available or that adequate arrangements have been made to make the services available when required.
In a recent appeal from a Commissioner’s decision, Robson J determined whether ‘adequate arrangements’ had been made to make ‘suitable vehicular access’ available when required. The clause under consideration, clause 6.9 of the Georges River Local Environmental Plan 2021, stated:
Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—
(a) the supply of water,
(b) the supply of electricity,
(c) the supply of telecommunications facilities,
(d) the disposal and management of sewage,
(e) stormwater drainage or on-site conservation,
(f) suitable vehicular access.
The proposed vehicular access
A proponent sought to develop the site marked in yellow in the image below for the purpose of a dual occupancy development. Vehicular access to the front dwelling was proposed via the western boundary to O’Gilvy Street. Vehicular access to the rear dwelling was proposed via the southeastern corner.
The complication in the proceedings was that the proposed rear access did not directly connect to a public road.
There was a narrow parcel of land between the site and the public road proposed for vehicular access (Lot 8). That parcel is shown marked purple below and was owned by the council.
(extracted from the Court’s judgment)
In the initial proceedings the council submitted that as there was no legal right of access over Lot 8, adequate arrangements had not been made to make vehicular access to the rear dwelling available when required.
The proponent suggested a deferred commencement condition that would require an easement to be obtained, arguing that an easement would allow a legal right for access and relying on separate proceedings he had commenced in the Court seeking the imposition of that easement.
The Commissioner agreed with the proponent that it was appropriate to impose the proposed deferred commencement condition.
Gray C considered that a process was already in place to obtain the legal right or entitlement to traverse Lot 8 and the condition would require lawful vehicular access prior to the development consent being operative. The Commissioner did not accept the council’s submission that an enforceable right should be in place prior to the grant of development consent.
Robson J’s decision
The council appealed the Commissioner’s decision. Robson J considered the issues and disagreed with the Commissioner’s judgment.
Robson J described the essential services clause as offering two pathways to development consent:
- If a consent authority finds that an essential service is available, the prohibition on the grant of consent in the essential services clause is lifted and subject to consideration of other s4.15 matters, development consent can properly be granted.
- If a consent authority cannot be satisfied that essential services are available, then the second pathway requires a consent authority to be satisfied that “adequate arrangements have been made” that the “essential” service will be available “when required”. For this second pathway, there must be a current arrangement that has been made. Robson J described this as: the service that is not presently available, will be available, and it will be available because adequate arrangements have “been made” to make it available.
Robson J stated there must be some form of objective and tangible proof to constitute an arrangement as something ‘made’.
Proof of the arrangement needs to pre-exist the decision maker’s satisfaction under the clause. The fact the arrangement is tangible gives the decision maker the ability to determine if the arrangement is ‘adequate’ as required by the clause.
Robson J consequently found the deferred commencement condition did not enable the Commissioner to be satisfied arrangements ‘have been made’ as required by the clause. The Commissioner’s opinion of satisfaction was, to a material extent, dependent on the proponent succeeding in the class 3 easement proceedings and there remained a prospect that the easement would not be granted.
Takeaways
This decision is of broad application given most essential services clauses are drafted to offer the two pathways to development consent outlined above.
When relying on the second pathway, a decision maker should consider a tangible arrangement to make the services available when required. That arrangement must exist before a decision is made to grant development consent.
Robson J’s decision is available here: Georges River Council v Eskander [2024] NSWLEC 98
You can also read our earlier post on similar issues here: What is “suitable vehicular access” where it involves neighbouring land?
You can contact Katie Mortimer on 8235 9716 or Samantha Hainke on 8235 9727 to discuss this post.
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