A dispute has broken out over a Merewether development after City of Newcastle claimed a right-of-carriageway had been lost, but the developer maintains it still exists.
The council has sought action from the state government over the Acoya development at 37 Llewellyn Street.
The site contains a right-of-carriageway easement, which was previously a well-used community connection point between Llewellyn Street shops and Caldwell Street, a preschool, park and playground and the Alice Ferguson Community Centre.
Council's approval in 2018 included a condition of consent (condition 69), stating the right-of-way is "unable to be relinquished, varied or modified without the concurrence of City of Newcastle".
Since then a large wall with a fire door was constructed as part of the development, blocking the public from accessing the carriageway.
The developer Diverse Property Constructions says the development "has been constructed as per the DA conditions including adherence with condition 69".
"Unimpeded access is available to council, as per the approval," the developer said. "City of Newcastle will be provided with a key.
"The development, including the wall, was constructed in accordance with the development consent and the associated stamped plans. The location, height and position of the wall is consistent with the plans approved by council."
The private certifier, Glenn Levick, said as far as he was aware the development did comply as access was provided to council with keys supplied and access to the general public was not part of the consent.
But council claims the right of carriageway has been removed and the development does not comply.
City of Newcastle CEO Jeremy Bath said independent legal advice was that "the community and City of Newcastle are right to expect to continue to have unimpeded access through the property as they have had for many decades".
He said council staff were also unable to access the right-of-way.
"When our truck attempted to drive through the car park in January, it couldn't due to the building services installed along the car park ceiling," he said.
"There was also insufficient clearance to safely manoeuvre through the car park area without damaging parked cars or our truck.
"The final insult was that the car park floor level has been constructed below the approved level which has resulted in the transition from the site's car park to the adjoining land being an inaccessible step between sites which our truck cannot get across."
The developer said matching ground heights were "never a condition of the DA and council did not raise any concerns or opposition to the different ground heights when the application was submitted and subsequently approved".
Council vowed to write to the Minister for Fair Trading asking him to investigate.
Fair Trading said it had not received a complaint about the development and Mr Levick, but would make inquiries with council.
The Office of the Registrar General said it could "not give advice on the terms of any particular easement".
Residents said they understood the right-of-carriageway was for public use and claimed the developer insisted prior to construction that public access would be maintained through the site.
But the developer disputes this.
"DPC or any of its staff or consultants has never made such representations to the public," they said. "The developer always understood its obligation to maintain the easement for City of Newcastle access to the site however, public access to the site had never been contemplated or required under the easement that burdened the site, this is consistent with condition 69."
A petition has been tabled to council after a community meeting in January, where more than 80 residents expressed their concerns with the loss of access.
THE DEVELOPMENT AND THE TITLE ISSUE
The developer had applied to remove condition 69 from the approval in December 2021, on the basis there were no registered easements on the title. The application was supported by a Certificate of Title (search date 23/11/2021) which showed the easement was unregistered.
In February 2022, council asked NSW Land Registry Services to investigate this.
The Office of the Registrar General said the site was converted to a new system partly in 1995, and the remainder in 2000, and the easement was not moved over to the new system.
The developer said it only became aware of the easement when public submissions were submitted to council against the modification, and withdrew its application in March 2022 "so it could further investigate the matter".
The easement was placed back on the title in July.
Council has written to the Lands department seeking advice on how the government agency failed to recognise the right of carriageway on the title until council intervened.
PUSH FOR NEW CARRIAGEWAY
Council is now pushing to create a public access point through the neighbouring Merewether Fire Station site, so residents don't have to walk around the entire block.
The council last week voted to write to the Minister for Emergency Services and Resilience Steph Cooke, and Newcastle MP Tim Crakanthorp, seeking their support for a public access to be created through the station site.
Newcastle lord mayor Nuatali Nelmes said at the council meeting while she didn't think the matter at 37 Llewellyn Street should be dropped, council "should keep pursuing... access for that right-of-way".
Labor councillor Carol Duncan, who took the issue to council, said the residents "are not so much interested in who did what... they just want to know what's going to be done about it".
"A result that gives you back some right-of-way is something that we will continue to fight for," she said.
Resident Kevin Moon said he believed public access should be re-introduced through the Acoya development.
Mr Crakanthorp agreed.
"The priority should be restoring the right of access to where it was and where it should be, as the community has made very clear," he said.
Fire and Rescue NSW Deputy Commissioner field operations Jeremy Fewtrell said Fire and Rescue would "wait to receive any correspondence on this issue from the City of Newcastle".
"Once this is received Fire and Rescue NSW will consider the correspondence, determine its position on the issue and then provide a response to council," he said.
WHAT DO YOU THINK? Join the discussion in the comment section below.
Find out how to register or become a subscriber here.
