In the decision of Justice Pain in Alramon Pty Ltd v City of Ryde Council [2022] NSWLEC 108, the Land and Environment Court recently considered the question of whether an accessway proposed through a council carpark is a road. This involved properly characterising the purpose of the use based on the facts of the case.

Car access to the proposed development relied on a council owned car park adjoining the Applicant’s commercial premises. Although the site of the development application had in fact used access through the council car park for many years, council refused to provide owner’s consent for the development application.

In Alramon, Class 1 and 4 proceedings were heard together. In the Class 1 proceedings, the First Applicant, Alramon Pty Ltd (Alramon) appealed against the City of Ryde Council’s refusal of its development application for a childcare centre.

In the Class 4 proceedings, the Applicants sought an easement under section 88K of the Conveyancing Act 1919 in the form of a right of carriageway over the council owned car park. The proposed easement had a maximum height of 3.933m above the existing ground level of the carpark connecting the proposed childcare centre to a public road (Proposed Easement).

The council carpark land was zoned SP2 Infrastructure in the Ryde Local Environmental Plan 2014. In that zone ‘roads’ are permissible with consent.

A key question before the Court was whether the proposed use of the council carpark falls within the meaning of a ‘road’ and therefore is permissible.

The Applicant submitted that the purpose of the use of the council carpark was for vehicular egress, as a private road. The fact that the private road would provide access to and from the proposed childcare centre is irrelevant. However, the Council disagreed.

Findings

Justice Pain found that the proposed use of the council carpark was not for the purpose of a private road and was therefore a prohibited use.

In reaching that conclusion, her Honour held that:

• Under the Roads Act 1993, a road includes the airspace above the surface of the road. In limiting the height of the proposed easement to 3.933m the Applicant was effectively seeking a tunnel.
• The council carpark is not a road and was never constructed as a road (unlike Argyropoulos v Canterbury Municipal Council (1998) 66 LGRA 202).
• The facts of Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 do not support the Applicant’s case since in that case an accessway was sought on private land and the Council conceded that any type of access way on private land could be categorised as a private road. However, in this case, the proposed easement was proposed over public land and use of the proposed easement would be shared with other people looking to park. In addition, Council did not concede the proposed easement constitutes a ‘road’.
• The proposed easement is for the purpose of serving the Applicant’s proposed childcare centre, and not as a road. As such the use of the council carpark is impermissible (see Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114).

Despite finding that the use of the council carpark was prohibited, it was open to her Honour to grant consent subject to a deferred commencement condition requiring the Applicant to obtain the right of carriageway over the council carpark. However, Justice Pain found that it would be inappropriate to defer an important aspect of the development (Mison and Ors v Randwick Municipal Council (1991) 23 NSWLR 734).

Justice Pain also found that the proposed easement is not reasonably necessary and that adequate compensation could not be provided to the Council pursuant under section 88K of the Conveyancing Act.

Her Honour dismissed both proceedings.

Key Takeaways

This decision and past authorities on the matter indicate that whether an accessway is a road is dependent on the use being properly characterised. That exercise involves taking into consideration the following:

• Does the accessway meet the definition of road under the Roads Act?
• Is the function of the accessway to permit passing and repassing of vehicles (see Argyropoulos)?
• What is the primary purpose of the accessway? The primary purpose of the accessway must be for a road and not to enable some other purpose: Chamwell.
• Is the accessway constructed or used as a road in the ordinary sense (that is a track that allows for the passage of vehicles) (see Chamwell)?
• Is the use of the accessway separate and not ancillary to its end use (see Goldberg v Waverley Council [2008] NSWLEC 49)?
• The land use of the start and/or destination of the vehicles passing over the road is irrelevant: Goldberg.
• Is the accessway proposed on private or public land (see Palm Lake Works)?