Posted on May 10, 2022 by Stuart Simington and 22

What is “suitable vehicular access” where it involves neighbouring land?

In a recent decision of the Land and Environment Court, the phrase “suitable vehicular access” was considered in the context of a residential development that required access over neighbouring land.

In the matter of Fitton v Central Coast Council, where Lindsay Taylor Lawyers acted for the Council, the applicant appealed against Council’s refusal of development consent for a detached dual occupancy comprising an existing dwelling and the construction of a new dwelling.

Background

The applicant’s land had the benefit of a right of way (ROW) over neighbouring land. The applicant sought to further rely on the ROW for the additional dwelling. However, the development application was lodged without the neighbouring land owner’s written consent. Accordingly, the consent authority was limited as to the extent of the planning permission that a grant of development consent could bring. 

It was contended by the Council in the appeal that there were inadequate arrangements for access to the development site and that the precondition at cl 7.9(E)  of Wyong Local Environmental Plan 2013 (WLEP) regarding essential services was not satisfied.

Development consent cannot 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 disposal and management of sewerage;
(d) stormwater management or onsite conservations;
(e) suitable vehicular access

It was agreed by the parties’ traffic engineers that additional works were required within the ROW to make it suitable for the additional vehicular usage.

Further, it was agreed that there would be an intensification of the use of the ROW because of the additional occupancy.

In the interpretation of what “suitable vehicular access” comprises in cl 7.9 of the WLEP, Council argued that it comprised all three of the following:

1. a physical method of access suitably servicing the development;
2. a proprietary right or entitlement to traverse the land; and
3. regulatory permission to use the ROW for the purpose that the access would serve. 

Council submitted that, matters 1 and 3 could not be demonstrated. Particularly, it was submitted that, in relation to regulatory permission to use the ROW, development consent was required for the intensification of the use of the ROW land as it was serving a use that was also being intensified.

Additionally, it was submitted that the inadequate access could not be dealt with by a deferred commencement condition as it was an essential matter. Particularly, the term “adequate arrangements” in cl 7.9 did not permit the Court to satisfy itself that the imposition of a deferred commencement condition would make vehicular access available when required. The Council also pointed to the decision of Pain J in Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84 at [29] to support the argument that it was not appropriate to defer such a matter. 

Decision

The Court accepted Council’s submission as to the three matters comprising “suitable vehicular access” and held that  it could not be satisfied that the access was available.

• Clause 7.9 of LEP 2013 required more than access, but rather ‘suitable access’.

• The Court accepted that evidence of the engineering experts that the current access was not suitable for the purpose of the development application in the absence of the works detailed.  Therefore suitable vehicular access was not available.

• Further, adequate arrangements had not been made to make it available when required because the deferred commencement condition proposed because:

  • The ‘development’ for which consent is sought, did not include the work. 

  • The deferred commencement condition deferred determination of a critical matter to post determination and left unresolved an essential part of the development.

  • There was no guarantee that the consent authority, or the Court on appeal, would grant consent to the development application described in the deferred commencement condition. Further, consent for the work might be conditional, or in different terms.

  • There was no certainty that a development application of the kind described in the deferred commencement condition could be made as the owner of the relevant land was not the Applicant and no owner consent had been obtained

The Court did not expressly deal with the issue of whether mere intensification of the use of the ROW was also lacking. 

Additionally, the Court was not satisfied that adequate arrangements had been made to made vehicular access available when required and found that the imposition of a deferred commencement condition were not appropriate arrangements to make them available. 

Lesson

Similar provisions to cl 7.9 of the WLEP exist in other local environmental plans that adopt the Standard Instrument. Where there is a need to consider the availability of services such as “suitable vehicular access” and the development application relies upon access from neighbouring land without the consent of the neighbouring owner, the consent authority must consider the three aspects that the Court held comprises “suitable vehicular access” and satisfy itself that it is available or that adequate arrangements have been made to make it available. 

You can read the decisions the subject of this post here: Fitton v Central Coast Council [2022] NSWLEC 1215.

If you wish to discuss the issues raised in this post, please contact Stuart Simington on 8235 9704 or James Fan on 8235 9706.