SUPPLEMENTARY AGENDA


Council Meeting

 

Monday, 26 November 2018

 

Dragon Room

Level 1, Georges River Civic Centre

Corner Dora and MacMahon Streets, Hurstville

 

 


Georges River Council – Ordinary Meeting -  Monday, 26 November 2018                                                                      Page 1

 

Ordinary Meeting

 ORDER OF BUSINESS

 

17.    Finance and Governance

CCL074-18       Property Matter - Provision/Construction of Private Vehicular Access to Residential Properties Across Taylors Reserve Lugarno - Supplementary Information

(Report by Head of Strategic Property)....................................................................... 2


Georges River Council – Ordinary Meeting -  Monday, 26 November 2018                                                                      Page 2

Finance and Governance

Item:                   CCL074-18        Property Matter - Provision/Construction of Private Vehicular Access to Residential Properties Across Taylors Reserve Lugarno - Supplementary Information 

Author:              Head of Strategic Property

Directorate:      Community and Culture

Matter Type:     Finance and Governance

 

 

 

Recommendation

That the supplementary information provided in this report be received and noted.

 

Executive Summary

1.      This is the supplementary report requested by Councillors on 12 November 2018 to provide further detail in relation to the cost, potential funding sources, planning and legal implications of creating a public road rather than a private road through Taylors Reserve, Lugarno.

2.      The parts of the Reserve required for a formal road, whether private or public need to be re-classified as operational land.

 

3.      The estimated cost of upgrading the accessway track to a private road of an acceptable standard (with 3.75m of seal) is approximately $344,000 (subject to detailed design and investigation). The private road will encroach onto approximately 17m2 of Lot 1. Council would need to grant the adjoining owners rights of way over the Reserve by easement.

4.      The estimated cost of upgrading the accessway track to a public road of an acceptable standard (with 6m of seal) is either $700,000 (Option B – with kerbing, drainage, formal pedestrian pathway and improvements to street lighting) or $550,000 (Option C – without kerbing and formal pedestrian pathway). The creation of a public road would result in the loss of additional open space (approximately 323m2 within Lot 1 of Taylors Reserve), and five mature trees.

5.      Even if a public road was created, the road linkage to Woodland Avenue will still need to be formalised by a right of way because the existing seal at the Woodland Avenue end is of an insufficient width for service vehicles turning into a public road.

6.      Whether a private road or a public road is created, the adjoining owners will benefit from legal vehicular access and can be required by Council to equally contribute to the costs of construction of the road plus legal costs.  The amount of the contribution will depend on whether a private road or a public road is created.

 

7.      Whether a private road or a public road is created, Council officers have previously recommended that adjoining owners be given an option to repay their share of costs by either an upfront payment, an instalment payment plan over a five years, by the levying of a special rate on their property in accordance with section 405 of the Local Government Act 1993 (LG Act) or by registering a legal charge over the land.

 

8.      Alternatively, Council could fund the cost of constructing a private road or a public road to benefit the adjoining owners.

 

9.      If a public road is to be created, amendments will need to be made to the current planning proposal and a further public exhibition process will need to be undertaken to allow the public to consider the additional impacts that a public road would have upon the Reserve.

 

10.    Despite minimal public benefit of constructing a dedicated public road through Taylors Reserve, the creation of a public road will facilitate significant development and subdivision benefits to some adjoining owners.

 

Background

11.       The Finance and Governance Committee on 12 November, 2018 considered report FIN105-18 that recommended the following:

“That legal vehicular access to ten residential properties located on the western side of Taylors Reserve be granted via the creation of a right of carriageway (easement) subject to:

(a)     The prior reclassification of part of Taylors Reserve from community to operational land pursuant to the current Planning Proposal; and

(b)     The completion of road works to ensure that the private access road to the properties meets Austroads Local Road - Class 9 Classification standards; and

(c)     The grant of Right of Way to each property owner by easement; and 

(d)     The full cost of the private road construction and the grant of easement being borne by   the property owners who will benefit from the easement.

(e)     That funding option 1(c) be made available to all of the property owners who will benefit from the easement.”

 

12.    The Committee subsequently resolved as follows:

          Recommendation: Councillor Hindi and Councillor Kastanias

(a)       That Council continues with the planning proposal to reclassify the land from community to operational land.

 

(a)     That the General Manager provides a supplementary report into the cost, potential funding sources, planning and legal implications of creating a public road rather than a private road with rights of carriageway, with a report to come back to the next Council meeting.

 

Funding the Road

13.    Whether a private road or a public road is created, adjoining owners would be given an option to repay their share of construction costs by either an upfront payment, an instalment payment plan over five years, or by the levying of a special rate.

14.    The previous report recommended that Council pay for the road construction costs upfront and seek recovery of that expenditure at a future time.

 

15.    The report afforded adjoining owners the option of paying a lump sum contribution, an instalment payment plan over a 5 year period, or that Council placed a charge over the adjoining land.

 

16.    In the absence of any voluntary contribution from the adjoining owners, Council can impose the contribution, by levying a special rate on each adjoining property, under Section 405 of the Local Government (LG) Act. 

 

17.    This is considered a more straightforward process in circumstances where a legal charge over the land would require owner/mortgagee consent before registering the charge. 

 

18.    The special rate will be a charge on the land that can be disclosed in a section 603 certificate.  Section 550 of the LG Act provides that such a charge “ranks on an equal footing with a charge on the land under any other Act but takes priority over any other charge or encumbrance”.  Please refer to the confidential and privileged legal advice from Lindsay Taylor Lawyers dated 19 November, 2018. (Confidential Attachment provided under separate cover).

 

19.    Service vehicles will require two way access provided from the Lime Kiln Road entry.  Provision will also need to be made for a turning area to facilitate the turning movements of service vehicles as shown on the attached plan (Attachment 1).

 

20.    If Council decides to fund the creation of a public road, additional non-budgeted funds of approximately $700,000 will need to be sourced from General Reserve or at the expense of another capital project.

 

Private Road with Easement Rights of Way

Design/Costs of Construction

21.    Option A - Right of Way is detailed in the report at Attachment 2 and Sheet 2 of the plans in Attachment 1. The report will require further detailed design and investigation.

22.    The private road option will require a seal width of 3.75m with passing bays being 5.5m wide and located every 30m to allow for a two way operation. The minimum single-lane two way seal width of 3.75m will permit the access track to be classified as a “Local Road Class 9” in accordance with the National Road Classification 2001 and will meet Council’s insurance obligations.

 

23.    Service vehicles over 6.6m in length cannot negotiate the turn at Woodlands Avenue into the road through the Reserve without costly road widening, property acquisition, service relocations and substantial structural infrastructure to support the road way. Should a private road proceed, it is recommended to sign post this entry as “NO ENTRY VEHICLES OVER 6.6m” in Woodlands Avenue.

 

24.    Service vehicles will require two way access to be provided from the Lime Kiln Road entry. Provision will also need to be made for a turning area to facilitate the turning movements of service vehicles as shown on Sheet 2 of 3 (Attachment 1).

 

25.    The cost of constructing the private road is now estimated to be $344,000.  Additional legal costs will apply to formalise the rights of access by easement.

 

26.    No trees in the Reserve will require removal.

 

27.    The property adjoining the playground at 16 Lime Kiln Road will retain its vehicular access to Lime Kiln Road.

 

Planning Considerations

 

28.    If Council determines that 3.75m wide private road is to be created, with access by way of easement for adjoining owners, the current planning proposal will now need to be amended.  This is because the current planning proposal only contemplated the reclassification of Lot 2, and the design of the private road will now encroach 17m2 into Lot 1.

 

29.    Although the Environmental Planning and Assessment Act 1979 (EPA Act) does not require a new planning proposal to be submitted if changes are made to a planning proposal, it would be prudent for Council to undertake further community consultation having regard to the required change.

 

Legal Considerations

30.    Private roads are permissible without development consent in the RE1 zone.

 

31.    Assuming the required parts of Lot 1 and 2 are classified as operational in the future, rights of access to the private road can be granted to each adjoining owner by granting easements for right of way under section 88 of the Conveyancing Act 1919.

 

32.    Council would sign post the road to mark it as a private road, to limit vehicles using the road to the adjoining owners and service vehicles. Section 632 of the LG Act provides that it will be an offence to disobey Council signs.  As such, Council would have the power to prosecute non-residents who use or park on the road.

 

Dedicated Public Road

Design/Costs of Construction

 

33.    The Option B and Option C - public road options are shown in the report at Attachment 2 and sheet 1 of 3 of the plans at Attachment 1. Both options will require further detailed investigation and design.

 

34.    Should Council determine to construct a dedicated public road; a two-way, two-lane service road with parking along one side is recommended.  This roadway requires a minimum seal width of 6.0m.

 

35.    The Guidelines recommend a range of 5.0m – 6.5m width.  The recommended 6.0m width will facilitate the entry and exit onto Lime Kiln Road and the vehicle “swept” paths for access (as per note 2 of table 4.3 shown below).  The geometric location of kerbing has been influenced by the location of existing trees and existing utility services such as Telstra pits and light poles.

 

36.    The boundary for the public road would be limited to the location adjacent to the turning area (see sheet 3 of 3 of the plans at Attachment 1). This is due to insufficient carriage way width available (3.8m existing) at the Woodlands Avenue end of the Reserve. This linkage to Woodlands Avenue will need to be formalised by right of way and cannot be dedicated as a public road.

 

37.    The light poles within the Reserve are at suitable locations. However upgrading to luminaries is likely to be required.

 

38.    Drainage exists via an existing stormwater line at the north western corner of Taylors Reserve with sufficient capacity to drain the area via additional kerb inlet pits and 40m of drainage line as shown on the plan.

 

39.    Service vehicles over 6.6m in length cannot negotiate the turn at Woodlands Avenue into Taylors Avenue without costly road widening, property acquisition and substantial structural infrastructure to support the roadway.  Further detailed design for feasibility would be required. It is necessary to sign post this entry as “No Entry VEHICLES OVER 6.6m” in Woodlands Avenue.  All service vehicles would be required to utilise the two way access via the Lime Kiln Road entry.

 

40.    Public Road Option B would require the provision of 6.0m wide seal, kerbing, drainage, formal pedestrian pathway and improvements to street lighting to meet current Australian standards, and would cost approximately $700,000.

 

41.    Public Road Option C with a 6m wide seal but without the pedestrian pathway and kerbing, would cost approximately $550,000.

 

42.    Any dedicated public road proposal will encroach onto the Reserve (Lot 1) by 323m2 and will result in the loss of five mature trees.

 

43.    The adjoining property opposite the playground at 16 Lime Kiln Road will lose vehicular access to Lime Kiln Road as it would conflict with the new public road.  Negotiations will be required with this owner in relation to access to the new public road.

 

44.    Modifications will also be required to the existing childrens’ playground to ensure an appropriate separation is achieved between park users and traffic on the public road.  The cost of these modifications has not been estimated.

 

Planning Implications

45.    If Council determines that a public road is to be established, it is recommended that the existing planning proposal to enable the creation of easements not proceed.  A dedicated public road option will affect additional land within Taylors Reserve (approximately 323m2 of Lot 1 in DP1200178).  The current planning proposal only contemplates the reclassification of Lot 2.

46.    Council can create a new planning proposal to consider the creation of a public road instead of easements with rights of access.  If Council elects to proceed with a new planning proposal, the community consultation process will be undertaken again so that the public has an opportunity to comment on the impact that the public road option may have upon the Reserve.

47.    The planning proposal would not necessarily need to seek rezoning of the public road from RE1 to R2 unless required for strategic planning reasons.

48.    As reported previously, provision of any form of lawful access through Taylors Reserve to service the adjoining properties will likely provide those property owners with a 10% increase in property values on average.

 

49.    Council has obtained independent planning advice concerning likely benefits that a dedicated public road could have on affected adjoining owners.  The report identified that a dedicated public road would permit the owner of 2A Woodlands Road to subdivide this land-holding into four separate Torrens Title parcels.  Other opportunities for lot amalgamation and subsequent redevelopment also will exist.

 

50.    The complete commercial-in-confidence analysis of the potential for redevelopment of adjoining properties can be found in the annexed planning report shown in the Confidential Attachment provided under separate cover.

 

Legal Implications

 

51.    Public roads are permissible without development consent in the RE1 zone.

 

52.    Assuming the required parts of Lot 1 and 2 are classified as operational, Council may, by notice in the Government Gazette, dedicate land as a public road (s10 Roads Act 1993).  On publication of the notice, the land will be public road.   Members of the public and the adjoining owners will have vehicular and pedestrian access (s5, s6 Roads Act 1993).

 

53.    Under the Roads Act, Council is only the Roads Authority in respect of public roads, not private roads.

 

54.    Accordingly, if a public road is created Council would be afforded the roads authority protection under the Civil Liability Act 2002. S45(1) of the Civil Liability Act 2002 provides that:

“A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.”

 

Community Engagement

55.    Community engagement will be conducted via a new public hearing process for any amended or new planning proposal, should Council resolve to provide vehicle access across Taylors Reserve to the adjoining private properties.

 

File Reference

16/1676

 

 

 

ATTACHMENTS

Attachment 1

Road Concept Plan - Taylors Reserve

Attachment 2

Preliminary Engineering Report - Taylors Reserve Road Options

 


Georges River Council - Ordinary Meeting - Monday, 26 November 2018

CCL074-18             Property Matter - Provision/Construction of Private Vehicular Access to Residential Properties Across Taylors Reserve Lugarno - Supplementary Information

[Appendix 1]          Road Concept Plan - Taylors Reserve

 

 

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Georges River Council – Ordinary Meeting -  Monday, 26 November 2018                                                                      Page 13