- The Land and Environment Court has refused consent for a fast food development because access was proposed from a classified road where access via a local road was also available, although alone, not considered desirable by the developer.
- Clause 101 of the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) is likely to be argued by councils as a prohibition against main road development where another “practical” alternative road is available.
- The impact of the road on the proposed development must also be considered.
- DAs for main road frontage developments will need to include expert reports on the lack of “practical” alternative road access and the environmental impact of the main road on the development and the effect of the development on the road.
Regulation of Classified Roads in NSW
Currently, the ISEPP regulates access to development from classified roads which are controlled by the Roads and Maritime Authority (RMS). Clause 101 of the ISEPP requires a consent authority to have regard to the matters in clause 101 when assessing a proposed development with frontage to a classified road including:
- the impact the proposed development may have on the operation and function of the classified road; and
- the impact of traffic noise and vehicle emissions from the classified road on the proposed development.
If the consent authority is not satisfied that the tests in clause 101 have been met, the consent authority has no power to grant consent to the proposed development.
Implications of Modern Motels case
Recently, Preston CJ handed down judgment in the case of Modern Motels Pty Ltd v Fairfield City Council  NSWLEC 138 (Modern Motels) which considered the tests in clause 101 of the ISEPP. Arguably, the decision sets a higher hurdle for developers where a development has frontages to both a classified road and another road (such as a local road controlled by the local Council) for the following reason:
- there is a presumption that the desired outcome for access to land upon which a development is proposed is not to be provided by the classified road but instead by a road other than a classified road; and
- where either:
- dual access from both the classified road and local road is sought; or
- access by only a classified road is sought and there is also a frontage to a local road,
substantial and robust evidence will need to be provided by the developer to support the position that access from only the local road is insufficient and not “practicable” and that instead the type of access referred to in (b)(i) and (ii) above is essential. Such evidence may take the form of traffic flow, pedestrian or traffic safety data supporting such a position.
It is clear that previously held assumptions are incorrect, namely that the test in clause 101(2)(a) would be met without any substantial evidence to support the position that it is “practicable” access:
- is only from a classified road (where there is also available access from a local road); or
- is from a local road and that could also be used in combination with or in addition to a classified road.
Facts in Modern Motels
The Commissioner’s decision at first instance
The Applicant, Modern Motels Pty Ltd, appealed against Fairfield City Council’s (Council) decision to refuse its development application for the development of two fast food restaurants, Souvlaki Hut and Red Rooster. The development had frontage to a classified road known as the Hume Highway and a local road known as Chadderton Road. Commissioner Brown dismissed the appeal on the basis that the Court could not grant consent to a proposal where the Court is satisfied that practicable vehicular access is available from another road other than a classified road. Commissioner Brown stated that:
As the development cannot function in the form before the Court, if access is denied from the Hume Highway, then the development application must be refused and the appeal dismissed.
Section 56A appeal against Commissioner’s decision
The appellant appealed, raising several grounds focussing on the interpretation of clause 101 of the ISEPP and the meaning of the words “where practicable” in clause 101(2)(a). The appellant argued that Commissioner Brown’s interpretation was too narrow and had the effect that it barred any access from a classified road where access by an alternative road was available.
Clause 101 of the ISEPP requires a consent authority to be satisfied of certain matters when determining a development application, including that the development meets the objectives of the clause. The objectives of clause 101 are:
- to ensure that new development does not compromise the effective and ongoing operation and function of classified roads; and
- to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.
The key provision under consideration in both appeals, subclauses 101(2)(a) and (b) read:
101 Development with frontage to classified road
(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:
(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and
(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:
- the design of the vehicular access to the land, or
- the emission of smoke or dust from the development, or
- the nature, volume or frequency of vehicles using the classified road to gain access to the land, and
Preston CJ stated that the correct test in clause 101(2)(a) should be (paragraph 42):
The phrase “where practicable” regulates the desired outcome (“vehicular access to the land is provided by a road other than a classified road”). The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road.
Preston CJ held that the construction of clause 101 of the ISEPP supported this position and furthered the objectives of the clause, being to ensure new development does not compromise the effective and ongoing operation and function of the classified road.
Once the hurdle in clause 101(2)(a) had been overcome and access to a development from a classified road is practicable in the circumstances, then clause 101(2)(b) is engaged so the consent authority must consider whether the development will have any impacts on the safety, efficiency and ongoing operation of that classified road.
It is important to note that the test applied in clause 101(2)(a) regarding practicability does not arise where access to the development can be provided only by a classified road and not another road. However, the provisions of clause 101(2)(b) would still be engaged.
Preston CJ found that the Commissioner did err in his decision as he did not turn his mind to the question of practicability under clause 101(2)(a) of the ISEPP and instead applied a narrower test.
The correct test is stated by Preston CJ as follows (paragraph 42):
The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than a classified road.
The matter was remitted to the Commissioner for reconsideration on the above point. In any event, the Commissioner applied the test stated by Preston CJ and the development application was subsequently refused and the appeal dismissed.