Appeal and Judgment of the Wollombi Road Upgrade
In part 1, we delved into the decisions made by Cessnock Councilors back in 2009. These decisions have ultimately led us to the current predicament—a road upgrade that went unnoticed at the time, but now, in 2023, has stirred a vocal uprising among local residents and businesses. Despite being in the works for a decade, the upgrade is now facing significant opposition.
This article provides an overview of the appeal and judgment of the Wollombi Road upgrade, which was part of the Johnson Property Group Pty Limited v Cessnock City Council and Mountview Grange 88 Pty Ltd v Cessnock City Council case. The appeal was lodged on 22 December 2017, and the judgment was delivered on 9 March 2021 by the Land and Environment Court of New South Wales.
The case involved a development application for the Bellbird North Urban Release area, including the impacts on regional roads and conditions of a kind allowed by a contributions plan. The proposed works for the Wollombi Road upgrade were contested for two reasons. Firstly, the applicant questioned the basis for coupling the delivery of the subdivision stages with the respondent’s delivery of infrastructure. Secondly, as Wollombi Road is a classified road, funding for its maintenance and upgrade is not the responsibility of the respondent, and yet the respondent seeks contributions in the contributions plan for its upgrade.
The upgrades that were principally in dispute were the Wollombi Road/Bellbird North Road intersection and the widening of road known as Wollombi Road from a width of 20m as proposed to 23m. The author of the TTPP report acknowledged that the works were for a new intersection, as recorded in the TTPP Report.
The Respondent proposed a condition of consent making the issuance of a subdivision certificate contingent on upgrade works being completed. However, the Applicant argued that such conditions of consent would unreasonably inhibit the progress of stages of the subdivision.
In the end, the finding was whether it was reasonable for the Applicants to make a contribution to these works. The court considered the impacts on regional roads and concluded that the mid-block performance of Wollombi Road would deteriorate to a LoS E as a result of the combination of background growth and development volumes. The court also noted that Mr McLaren a traffic expert who was engaged by the Applicant in the Johnson Property Group Pty modelling concluded that Wollombi Road would require widening on the basis of background growth alone.
The verdict In the Wollombi Road upgrade case, the Applicant was seeking to remove certain conditions of consent, while the Respondent was proposing a condition of consent making the issuance of a subdivision certificate contingent on upgrade works being completed. The court’s decision was to allow the appeal and grant the development application, subject to conditions. Therefore, it can be said that the Applicant did not win in their attempt to remove the conditions of consent.