Abernethy Developments Pty Ltd v Cessnock City Council - [2009] NSWLEC 1079

Land and Environment Court

of New South Wales

CITATION: Abernethy Developments Pty Ltd v Cessnock City Council [2009] NSWLEC 1079
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Abernethy Developments Pty Ltd
RESPONDENT
Cessnock City Council

FILE NUMBER(S): 10679 of 2008

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- subdivision, bushfire risk, adequacy of services, drainage, character of development, public interest.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Cessnock Local Environmental Plan 1989
Cessnock Development Control Plan 2006
State Environmental Planning Policy 55 – Remediation of land.
Hunter Regional Environmental Plan 1989.
Hunter Regional Environmental Plan 1989 Heritage

DATES OF HEARING: 3/02/2009 and 4/02/2009

DATE OF JUDGMENT:
13 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. McKee, solicitor
of McKees Legal Solutions
RESPONDENT
Mr R. Mallik, solicitor
of Mallik Rees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 March 2009

10679 of 2008 Abernethy Developments Pty Ltd v Cessnock City Council
JUDGMENT

Background.

1 This appeal was lodged against council refusal of a development application for a subdivision to create 11 new residential allotments at Munn Street, Abernethy. A number of issues were initially identified for the appeal, but after conferencing by the parties, these were subsequently reduced to the following:

Insufficient details concerning drainage flow paths, location of existing vegetation, location of bushfire water tanks and new road details.
Flooding and stormwater disposal arrangements.
Impact on EEC
Bushfire risks.
Availability of services, particularly water supply.
Visual impacts.
Adequacy of proposed access road system.
Public interest in terms of bushfire risk, water supply, compatibility of the development with the character of the development and amenity impacts on the historical Abernethy Guest House.

2 However, at the commencement of the proceedings the Court was informed that the parties agreed to consent orders.

The site

3 The site is situated on the southern fringe of the village of Abernethy and it has an area of 9.09 ha. It generally falls to the west, with a grade of approximately 8% towards Swamp Creek.

4 There is an existing dwelling on the site together with a number of outbuildings. The site is bound by low density development to the north, the historic ‘Abernethy Guest House’ to the north-east and Aberdare State Forest to the south and west.

The proposal

5 This proposal involves:

The demolition of the existing dwelling and outbuildings.
The creation of 10 residential lots (lots 2 – 11) with areas ranging from 2000 sqm to 4472 sqm and accessed from a new 18m wide road constructed off Munn Street.
The creation of a residue lot (Lot 1), which has an area of 6.32 ha and it represents the balance of the land in the rural zone.
The proposed lots 6 and 11 are each accessed via a 5m wide battle axe handles.
Each allotment is to provide an area of 422 sq m for onsite effluent disposal.
Each lot is to provide water tanks to store 18000L in a combination of 8000Lresidual storage for the Peak Week demand and a 10000L dedicated water supply for fire fighting as per PBP – 2006.

6 The following controls are relevant in the assessment of this proposal:

Cessnock LEP 1989 (LEP); under which the site is zoned part Zone No 1 (a) Rural A and part Zone 2 (b) Village zone. Clause 11 deals with subdivision of land generally and requires council to be satisfied the land is suitable for disposing of effluent on site where there is no sewer. Clause 12 prescribes a minimum lot size of 40ha in the Zone No 1 (a) and a minimum lot size of 450 sq m is required for subdivision in the village zone. Clause 31 deals with flood affected land and clause 32 land subject to bushfire hazards.
Cessnock DCP 2006; This DCP contains the development controls, wherein the specific requirements for subdivision are contained in section 1.4. Section 1.5 contains the residential subdivision design controls.

7 Other relevant controls include:

State Environmental Planning Policy 55 – Remediation of land.
Hunter Regional Environmental Plan 1989.
Hunter Regional Environmental Plan 1989 Heritage.

The evidence

8 Detailed evidence was presented by:

Mr J Wasiak; town planner for council
Mr D Kettle; consulting town planner
Mr M Leek; engineer for council
Dr D Martens; consulting engineer for the applicant.

9 Both written and oral evidence was presented by a number of residents. They made objections to the proposal on the basis of its compatibility with the village character, bushfire risks, adequacy of services and amenity impacts, including those on Abernethy Guest House.

10 The application was subject to a detailed s 79C assessment (Report No 61/2007) as contained in exhibit 4. This assessment concluded that the reticulated water, stormwater, effluent disposal, bushfire and heritage issues associated with the subdivision of the land zoned 2(b) ‘Village’ have been adequately addressed such that the proposed development will not have a significant impact upon adjoining and downstream properties.

11 Consequently the proposal was recommended for conditional approval, subject to satisfactory arrangements being made to satisfy Hunter Water’s requirement for reticulated water supply.

12 Insofar as council refused the application, this decision was subsequently reversed with council’s agreement to the consent orders. Accordingly, I have addressed the matters raised by the objectors on the following basis.

Subdivision permissibility and suitability

13 The subject land is situated on the southern edge of the village and contains land, which is part village zone and part rural A. Subdivision of land within the village zone is permitted for lots having a minimum area of 450 sq m, subject to the availability of adequate services. In the subject case only limited water supply is available and there is no reticulated sewer system.

14 Accordingly, the application proposes considerably larger residential lots with areas in the range of 2000 sq m. This is to enable an on site effluent disposal (ED) area of approximately 422 sq m. The proposal also incorporates a water supply system comprising a new main in the street drawing limited town water, which is then augmented by on site tanks with 8000L capacity. There is also an additional water storage of 10000L storage for fire fighting purposes.

15 Based on the planning controls that allow this form of subdivision in these zones and the fact that servicing arrangements can be made, I do not consider the application should be rejected because it doesn’t satisfy the planning controls and is out of character. On the contrary, the controls appear to envisage this form of development in the village.

16 The residue part of the land is within the rural zone where a minimum lot size of 40 ha is required for subdivision. As the residue lot 1 has an area of 6.32 ha a SEPP 1 objection was lodged. This objection contained the following reasons for variation from the development standard:

The (6.74)ha parcel is the residue that will result from the subdivision.
The proposal will not create any additional dwelling entitlements for the rural zoned land.
The development does not seek to utilise the residue parcel of land for development of a type or intensity that will be detrimental to its rural character.
The proposal will rationalise the rural land and result in a more viable use of the site.

17 Consequently, this SEPP 1 objection was referred to the Department of Planning where the Director Generals concurrence has been granted to the proposed variation to clause 12 of the LEP. The department’s response states that ‘in making its decision, the Department was mindful of the split zoning and the proposed extension of the village in accordance with the zoning.

18 Whilst the subdivision will enable a more intense development of the subject land, I am satisfied it is consistent with the future character of the area as allowed by the current controls.

Heritage and amenity impacts

19 The owners of the historic ‘Abernethy Guest House’, which adjoins the northern boundary of the site, expressed concerns about adverse impacts on the building, loss of outlook and the viability of the guest house. Whilst this building is an imposing building and has an interesting history, it is not listed as a heritage item. Instead the Hunter Regional Environmental Plan (Heritage) 1989 identifies the building as an item under investigation. Consequently this status does not necessitate the carrying out of an assessment of the impact on the item that would be applicable to a listed item.

20 Notwithstanding this, the opportunity was taken at the view to assess the potential impacts on the outlook from various parts of the building. Whilst there are open views from the building, particularly the upper verandah, nevertheless this view includes that of other dwellings.

21 This objection was further reviewed in a joint planners conference of 3 February 2009. They agreed that the existing views to the subject site are already partly screened by existing vegetation and that allowing for the separation distances, then the requirement for a 2.5m wide landscape buffer along the southern and eastern boundaries of the subject site, and a condition for its ongoing maintenance via an 88E instrument, will effectively mitigate the potential for any visual impact.

22 Considering that the zoning permits the proposed subdivision, the separation distance of approximately 75m to the closest dwelling and that a 2.5m wide landscaping strip is to be established to screen future dwellings, I am satisfied to rely on the agreement by the planners that these objections are not sufficient to warrant rejection of the subdivision.

23 One of the fundamental concerns relates to the provision of adequate water supply. This arises because the existing water main supply is under capacity for the village and unable to deliver adequate supply and pressure. Consequently the applicant arranged for a water supply strategy to be undertaken by consulting engineers Cardno. This strategy involves:

The provision of a single connection to the subdivision in accordance with HWC’s Section 50 requirements. I note that the effect of this is to replace the existing main connection to the existing house on the land.
Provide a water supply tank to each new dwelling in accordance with HWC’s service standards. This includes the installation of the combination 18000L capacity tank.
Provide a water main and future connection points in the proposed road that will allow a simple standard connection to HWC’s reticulation when their programmed augmentation of the local network is undertaken.

24 This water supply issue was referred to the HWC, who issued its requirements for the subdivision. These requirements confirmed the limitation on water supply to the 1 equivalent tenant (1ET) and the need to construct certain lead in works, together with other headworks charges.

25 The HWC also indicated that the detailed water main design should provide for a connection point that does not adversely impact on the existing properties in the area. Also, that in any case, the construction of the new lead-in main will not meet current design standards for individual fire flow requirements of 10l/s within the main.

26 Taking into account that the deficiency in water supply/pressure is to be augmented by additional on site storage tanks of 8000L capacity, I am satisfied that reasonable arrangement for the interim supply of water can be made according to the details from the HWC of 10 December 2008. In this regard, I also note that the HWC works program has listed the village water main upgrade for completion by 2013/14.

27 The other critical servicing issue concerns effluent disposal. Dr Martens, assessed this matter in a detailed site survey and concluded that adequate area on each lot was available to satisfactorily accept the effluent. This was subject to regular inspections of the systems to ensure proper maintenance. I am satisfied conditions of consent can cover this.

Stormwater drainage

28 The objections relate to potential problems created from increased run-off from the development and likely future flooding along the Swamp Creek environs. However a drainage concept plan was submitted that includes stormwater drainage in the new road, discharging into a swale along Munn Street and tailing out to the Swamp Creek watercourse.

29 The proposal involves the installation of oversized pipes to provide stormwater detention from the development. Inter-allotment drainage is also to be placed along the western boundary to limit and divert overland flows onto Lot 5290 Munn Street. Insofar as concerns were expressed about possible concentration of the stormwater flows into the watercourse causing scouring or other impacts, I am satisfied from the engineer’s evidence that detailed designs can be prepared and works undertaken to satisfactorily address this.

30 The other drainage issue concerns flooding. It is apparent from the evidence that Swamp Creek is subject to regular flooding events and this flooding also occurs along parts of Munro Street. In particular at an existing causeway approximately 100m from the Munn Street intersection.

31 This matter was reviewed by the engineers and in light of the proposed drainage works, they said that the subject site forms a very small part of the overall catchment contributing to the flooding at Murray Street. Furthermore, that the proposed on-site drainage works will not increase flooding downstream of the site and that with the development including the piping of the existing causeway in Munro Street, the existing access and drainage problems will be alleviated. I then rely on these opinions that conditions can be imposed to require reasonable drainage upgrading works that minimise drainage problems. Notwithstanding this, I acknowledge that in significant storm events, flooding will still occur in Swamp Creek.

Bushfire Risk

32 Much concern was genuinely expressed by the residents about the exposure of residents and property in the potential new dwellings to bushfire risk. Many of the objections were made on the basis of personal experience in past bushfire events, particularly that in 1992, where 1 life was lost and 6 homes destroyed in the village.

33 However, the applicant recognised the bush fire risk issue and submitted a detailed ‘Bushfire Hazard Assessment Report” in support of the application. This report was prepared by Mr McMonnies, a certified bush fire consultant. The assessment was based on the provisions of the ‘Planning for Bush Fire Protection – 2006’ (PBP) manual and includes:

An assessment of the site orientation and topography.
Vegetation analysis.
Determination of asset protection zones (APZ).
Firefighting water supply; this recognised the restricted supply from the town water main and recommended each new lot have an individual 10000L tank.
Property access in an emergency situation.
A bushfire hazard assessment.
A conclusion that supports the subdivision subject to conditions including that future dwellings be constructed in accordance with appropriate bushfire classifications listed in AS 3959.

34 Mr McMonnies explained that most areas have a bush fire management plan (BFMP) which assesses the various risks in bush fire events. This process includes strategic fire protection plans that are designed to protect the community and make them “fire wise”. He also said that fire risk for new development that is classified as “bush fire prone land” (BPL), is assessed on the basis of the “Planning for Bush Fire Protection” (PBP) document as revised by the Rural Fire Service in 2006. That is the procedure undertaken in the current matter.

35 The aim of PBP is to use the NSW development system to provide for the protection of human life (including firefighters) and to minimise impacts on property from the threat of bush fire, while having regard to development potential, on-site amenity and protection of the environment.

36 The associated objectives are to:

(i) afford occupants of any building adequate protection from exposure to a bush fire;

(ii) provide for a defendable space to be located around buildings;

(iii) provide appropriate separation between a hazard and buildings which, in combination with other measures, prevent direct flame contact and material ignition;

(iv) ensure that safe operational access and egress for emergency service personnel and residents is available;

(v) provide for ongoing management and maintenance of bush fire protection measures, including fuel loads in the asset protection zone (APZ); and

(vi) ensure that utility services are adequate to meet the needs of firefighters (and others assisting in bush fire fighting).

37 The stated general principles underlying this document are:

Protection measures are governed by the degree of threat posed to a development;
A minimum setback from a hazard is always required, i.e. a defendable space;
The greater the setback from the hazard, the lower the subsequent bush fire protection construction standards required.
The smaller the interface a development has fronting the bush fire threat, the less the opportunity for bush fire to threaten the development.
Bush fire protection measures (BFMs) are contained within the ‘overall’ development and not on adjoining lands, other than in exceptional circumstances ) see section 3.30 and;
No development in a bush fire prone area can be guaranteed to be entirely safe from bush fires.

38 As the subject development is “integrated development”, it was referred to the NSW Rural Fire Service (RFS) for assessment and any general terms of approval. Subsequently the RFS responded that it was prepared to issue a fire safety authority subject to conditions to the following effect:

The development proposal is to comply with the identified, revised subdivision layout.
The designated asset protection zones are to be implemented to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building.
At the commencement of building works the entire property is to be managed as an outer protection area (OPA).
Water, electricity and gas are to comply with section 4.1.3 (1) of PBP.
Public road access is to comply with section 4.1.3 (1) of PBP.

39 The applicant accepts these conditions. Also, I understand that the RFS is satisfied in the circumstances of the restricted mains water supply, that this can be supplemented by the provision of a dedicated fire fighting tank of 10000L as part of the development.

Conclusions

40 Having considered the evidence, the submissions and undertaken a view, I am satisfied the consent orders should be granted. One aspect of the proposal discussed during the appeal concerned the staging of the development to allow the excision of Lot 1. However after considering the implications of orderly development of the land, the applicant maintained the intent of the original development, not to be staged, thus complying with the terms of the SEPP 1 objection.

41 Insofar as many objections were lodged, I am satisfied that this subdivision comfortably complies with the relevant controls, particularly the LEP and DCP. Accordingly this is the form of development envisaged by the controls, despite the objectors preferring an alternate, less dense form.

42 As the site is classified as bush fire prone land it has been subject to a detailed assessment based on the provisions of PBP – 2006, which is the current planning control on this issue. Furthermore, the application has received conditional approval from the RFS and subject to the imposition of those conditions.

43 In this regard, I note that during the proceedings the applicant agreed to incorporate a new “fire trail” through the APZ area in Lot 6. This will have the effect and benefit of providing alternative access to future residents, firefighters and existing residents in an emergency situation. In summary, I do not consider there was any compelling evidence to reject the application on this issue.

44 However, I also note that this is a subdivision application and subsequent applications would be required for any building proposal. The building designs would then be subject to merit assessment in terms of their suitability for the projected bush fire risk.

45 Whilst the utility servicing is less than ideal, nevertheless an adequate water supply can be implemented on an interim basis until the HWC extends the mains water supply, which is indicated to be in the foreseeable future. This water supply consists of the limited connection via the new main, augmented by the combination 18000L on-site tank.

46 Ultimately, my conclusion is that the SEPP 1 objection to the minimum lot size in cl 12 of the LEP should be allowed and that the consent orders satisfactorily cover the relevant planning matters and should be granted.

46A Addendum

Provision of on-site water tanks.

Maintenance period for landscaping.

Effluent disposal areas.

Statement of Facts and Contentions

47 The Court orders by consent that:

1 The appeal is upheld.
2 Development consent is granted to Development Application 8/2006/455/1 for the demolition of an existing dwelling and a 11 lot subdivision on land being lot 2 DP 840845 known as 83 Ferguson Street Abernethy, subject to the conditions on Annexure “A” (Schedule 1 and 2),
3 The exhibits may be returned except A, L and 12.
Note: The Court notes that each party agrees to pay their own costs.

________________________
R Hussey
Commissioner of the Court
ljr

Annexure ‘A’

Conditions of Consent

Abernethy Development Pty Limited v Cessnock City Council

Lot 2, DP 840845 - 83 Ferguson Street, Abernethy

Condition 8A(b) and 9(A) have been varied by the NSWLEC on 20/3/09

SCHEDULE 1

Conditions of Approval

TERMS OF CONSENT

General

he proposed development shall be carried out strictly with details set out on the application form and the plans and reports as follows:-

a. Statement of Environmental Effects – Insite Planning and Engineering, May 2006. (as amended by supplementary information listed below)

b. Geotechnical Assessment Proposed Residential Subdivision – Martens Consulting Engineers, October 2008.

c. Stormwater Quality Management – Residential Subdivision Abernethy NSW – Martens Consulting Engineers, 27th October 2008.

d. Stormwater Quantity & Detention Management Report, dated 14 November 2008

e. Stage 1 Land Contamination Assessment Proposed Subdivision, Abernethy – Martens Consulting Engineers, October 2008.

f. Plan Reference ‘M1’ – Plan showing detail within part of Munro Street – Culvert location, 21st October 2008.

g. Plan Reference ‘E5’ – Plan of Landscaping with proposed buffer easement 2.5m wide adjoining Abernethy house, 10th October 2008.

h. Plan reference ‘A7’ – Plan of Lot Subdivision, dated 21 November 2008

i. Plan reference ‘G6’ – Plan of Amended Lot Layout, dated 21 November 2008

j. Plan H2 of concept road grading prepared by Bissett & Wright Pty Ltd, dated 14 November 2008

k. State Environmental Objection No. 1 (SEPP 1) David Kettle Consulting Pty Ltd, 27th October 2008.

l. Letter prepared by Eco Hub Pty Ltd regarding Asset Protection Zones and Vegetation, Undated (post October 20, 2008).

m. Report from Building Code & Bushfire Hazard Solutions, October 2008.

n. Letter in relation to Asset Protection Zones compliance, 24th October 2008.

o. Report from Bissett & Wright.

p. Letter in relation to Flood Free Access, 21st October 2008.

q. Letter in relation to interallotment drainage, 24th October 2008.

r. Report by Cardno Civil Engineers as follows.

s. Water Supply Strategy, October 2008.

t. Concept Water Supply Plan Dwg No. 89023662-300 Rev 3, 27th October 2008.

u. Letter enclosing statement of available pressure from Hunter Water Corporation.

v. Letter from Martens & Associates in relation to pump noise, 27th October 2008.

w. Wastewater Management study Proposed Residential Subdivision, Lot 2 Ferguson Street, Abernethy – Martens & Associates, 24th October 2008.
x. Letter from Hunter Water Corporation – Notice of Requirements for the subdivision (as previously proposed) 10 December 2008

Note : Any proposal to modify the terms or conditions of this consent, whilst still maintaining substantially the same development to that approved, will require the submission of a formal application under Section 96 of the Environmental Planning and Assessment Act 1979 for Council’s consideration. If amendments to the design result in the development not remaining substantially the same as that approved by this consent, a new development Application will have to be submitted to Council.
Reason
To confirm and clarify the terms of Council's approval.

PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

General

2. The registered proprietors of the land shall provide evidence of satisfactory arrangements having been made with electricity supply authority, telecommunications provider and the Hunter Water Corporation Ltd. for the provision of any existing and proposed installations prior to the release of the Construction Certificate for the subdivision. Any tanks forming part of the water reticulation system and fire supply shall be constructed below ground surface level.

Reason
To ensure that adequate arrangements are made and suitable design for the provision of necessary infrastructure is in place and that the interests of the relevant authority are protected.

3. The registered proprietors of the land shall construct the following in accordance with Councils ‘Engineering Requirements for Development’ and set out on a set of plans, six (6) copies of which are to be submitted and approved by Councils City Planning Department prior to the release of the Construction Certificate for roadworks:

i. Construct Munro Street from Munn Lane to Munn Street.
ii. Construct road pavement 8m wide including 6m two (2) coat hot bitumen seal.
iii. Construct under road culvert drainage in Munro Street in accordance with council requirements.
iv. Construct an inlet and outlet swale drains to convey stormwater to and from the road culvert within Munro Street where necessary.
v. Top dress and turf footpath to achieve a standard road crossfall.

All works are to be completed prior to the release of the second Plan of Subdivision and the second Subdivision Certificate.

Reason
To ensure that adequate provision is made for vehicular and pedestrian movements to meet the demand generated by the subdivision

4. (a) The applicant shall provide all weather access to Lot 1 in accordance with Councils Engineering requirements from termination of the existing seal on Ferguson street southerly to the existing access gate or an alternative location as approved by Council. Access construction is to be provided prior to the release of the subdivision certificate.

(b) The applicant is to provide an emergency access connecting the cul-de-sac to a gate on Ferguson Street through proposed lot 6 compliant with planning for Bushfire 2006. A right of way is to be created over this access in favour of RFS, Police and Emergency Services .

5. The registered proprietors of the land shall construct the following in accordance with Councils ‘Engineering Requirements for Development’ and set out on a set of plans, six (6) copies of which are to be submitted and approved by Councils City Planning Department prior to the release of the Construction Certificate for road works.

i. Construct Munn Street from Munro Street to the proposed internal subdivision road and the part frontage of lot 2 as a 6m wide 2 coat hot bitumen seal.
ii. Provide kerb and gutter along the frontage of proposed lot 7 and to the kerb return on Lot 2 with h a 1.0m gravel shoulder on the northern side of the road. The road construction is to be located generally in accordance with the plans, providing for an 7m wide road width.
iii. Construct road drainage where required including table drain to the northern side of Munn Street and swale drain northerly to Munro Street to connect to the existing swale drain in Munro Street.
iv. Top dress and turf footpath to achieve a standard road crossfall
v. Provide street signage and street lighting

All works are to be completed prior to the release of the Plan of Subdivision and Subdivision Certificate.
Reason
To ensure that adequate provision is made for vehicular and pedestrian movements to meet the demand generated by the subdivision.

6. The registered proprietors of the land shall construct the following in accordance with Councils ‘Engineering Requirements for Development’ and set out on a set of plans, six (6) copies of which are to be submitted and approved by Councils City Planning Department prior to the release of the Construction Certificate for roadworks.

vi. Construct the internal subdivision road from Munn Street southerly to serve proposed lot 1-11 as an 8m wide bitumen formation with modified rolled kerb both sides.
vii. Place asphaltic concrete wearing course over a primer seal.
viii. Top dress and turf footpath.
ix. Construct road drainage where required.
x. Construct street signage and lighting

All works are to be completed prior to the release of the Plan of Subdivision and Subdivision Certificate.
Reason
To ensure that adequate provision is made for vehicular and pedestrian movements to meet the demand generated by the subdivision.

7. A construction management plan shall be submitted with the application for the Construction Certificate. The management plan shall include:

(a) Details of sedimentation and erosion control.
(b) Details of provision of truck and machinery wash down areas. Note : All trucks and machinery must be free from all foreign material where such material is likely to cause pollution. An area must be set aside for the cleaning of concrete agitator trucks.
(c) Details of dust mitigation on building sites and access roads.
(d) Location and phone number of the site office.
(e) Details regarding provision of areas set aside for the storage/stockpiling of:
(i) Construction refuse
(ii) Construction materials
(iii) Raw materials such as sand, soil, mulch and the like
(iv) Details regarding the provision of facilities for workers associated with the development.

: All protection and control of earthworks shall be carried out in accordance with Council’s “Engineering Requirements for Development”, Department of Conservation and Land Management's 'Urban Erosion and Sediment Control’ requirements and the Department of Housing ‘Soil and Water Management for Urban Developments’.

Reason

8A. Varied by NSWLEC 20/3/09

The registered proprietor of the land on whose behalf the application is made shall prepare a detailed landscape and street tree planting plan for the following:-

Reason

To ensure appropriate landscaping is provided to the subdivision.

9A Varied by NSWLEC 20/03/09

The registered proprietors of the land shall install a suitable inground water storage tank to ensure adequate water supply to each lot for both potable and non potable uses at the frontage of each lot and in accordance with the submitted plans 89023662-300 Rev 3 and Water Supply Strategy Report October 2008 by Cardno and paragraph 3(b)(iii) of the Hunter Water Corporation notice of requirements dated 10th December 2008.

Reason

To ensure suitable water supply is available to each lot.

10. The registered proprietor of a individual lot shall provide in accordance with the Plans 89023662-300 Rev 3 and Water Supply Strategy Report October 2008 by Cardno an approved pumping system connected to the dedicated fire fighting water storage supply of each lot. Such pump shall be maintained in perpetuity by the owner of each individual lot to ensure the effective operation and protection of each dwelling on each lot. The approved pumping system shall be provided at the construction of, and prior to the occupation of, any dwelling on each lot.

Reason
To ensure adequate independent fire fighting capabilities for each lot in the subdivision.

11. The applicant shall, prior to the commencement of any works within Munro or Munn Streets, apply to Council for the issue of a Section 138 permit as required by the Roads Act 1993.

Reason
To ensure compliance with relevant legislation.

12. The applicant shall ensure that the Construction Certificate plans prepared for the subdivisional roads and drainage and all works within Munro and Munn Streets include the provision of the following:

a. The location of all trees to be removed.
b. The location and nature of all protection measures to protect existing trees proximate to proposed works in accordance with Part 3.7.8 of Councils Engineering Requirements for Development.
c. In pit (kerb inlet pits) gross pollutant trap collection system comprising grates/baskets etc. Such systems are to be proprietary brand products capable of periodic removal for maintenance.

All details of the above requirements are to be provided prior to release of the Construction Certificate.
Reason
To ensure protection of the sites environmental attributes.

13. The applicant shall comply with Council’s requirements as set out in Council’s “Engineering Requirements for Development” document (available at Council’s offices). A Construction Certificate incorporating engineering plans are to be submitted to Council for approval by the Development Services Manager with the relevant application prior to commencement of works on site or relative to the development. The payment of appropriate performance bonds in accordance with Council’s Fees and Charges will be necessary prior to approval and release of engineering plans with the Construction Certificate.

Reason
To provide appropriate design and standards of engineering works.

14. Plans showing the extent of excavation and/or filling together with details of the method of retaining, draining and stabilising the disturbed areas shall be submitted to and approved by Council prior to issue of the Construction Certificate.

Reason
To determine that satisfactory arrangements have been made to reduce environmental and building damage

15. Topsoil removed as part of the roadworks and drainage works shall only be stripped from approved areas and shall be stockpiled for re-use during site rehabilitation and landscaping. Details shall be submitted to and approved by Council prior to release of the Construction certificate.

Reason

To minimise erosion and silt discharge and ensure valuable topsoil resources are protected.

Drainage and Flooding

16. Any alterations to existing surface levels on the site shall be undertaken in such a manner as to ensure that no additional surface water is drained onto or impounded on adjoining properties. Full details of existing and proposed surface levels shall be submitted to and approved by Council prior to release of the Construction Certificate for the building/s.

Reason
To ensure that such alterations to surface levels do not disrupt existing stormwater flows in the vicinity.

17. The applicant shall show that the development will not increase the limits of upstream and downstream flooding for floods over the range of 1 in 1 year to the 1 in 100 year Average Recurrence Interval (ARI) storm events by the provision of a stormwater management plan and the inclusion of on-site stormwater detention controls for each lot. A typical detailed drainage design suitable for each lot shall be prepared for the disposal of roof and surface water from an individual lot, including any natural runoff currently entering the property. Details of on-site storage and the method of controlled release from the site and connection to an approved drainage system in accordance with Council’s “Engineering Requirements for Development” will be required prior to the release of any Construction Certificate for the site. The stormwater system shall include a rainwater garden prior to release from the site sized to improve water quality from each lot.

The detailed plans, specifications and copies of the calculations, including existing and proposed surface levels, sub-catchments and conduit sizing appropriate for the development will be required prior to the release of any Construction Certificate for the site. The Stormwater Management Plan and the design parameters for the on-site detention system shall be in accordance with Part 6.15.2 (d) of Councils Engineering requirements for development for impervious areas.
Reason
To ensure that the development is adequately drained and will not increase the flood hazard or flood damage to other properties or adversely affect flood behaviour.

Site Works

18. The applicant shall comply with Council’s requirements as set out in Council’s “Engineering Requirements for Development” document (available at Council’s offices). A Construction Certificate incorporating engineering plans are to be submitted to Council for approval by the Development Services Manager with the relevant application prior to commencement of works on site or relative to the development. The payment of appropriate performance bonds in accordance with Council’s Fees and Charges will be necessary prior to approval and release of engineering plans with the Construction Certificate.

Reason
To provide appropriate design and standards of engineering works.

DURING CONSTRUCTION

General

19. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a. showing the name, address and telephone number of the Principal Certifying Authority for the work, and
b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
c. stating that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, however must be removed when the work has been completed.
Reason
This is a prescribed condition under Section 80A(11) of the Environmental Planning and Assessment Act, 1979 .

20. Prior to the commencement of any building or demolition works the applicant shall engage the services of an Environmental Health & Safety Specialist to undertake the following:-

(a) An audit of the Structures proposed for demolition works to determine if there is any hazardous material present, which may include but not be limited to asbestos.
(b) Where such materials are identified the Environmental Health & Safety Specialist shall, in consultation with the owner of the property, interested parties and relevant government authorities, develop a work Plan for the demolition and disposal of the hazardous material.

(c) the demolition and disposal Work Plan shall -

i) be developed in accordance with WorkCover authority requirements for the said demolition and/or associated work.
ii) be in accordance with the waste management authority requirements for the disposal of the hazardous material.

The Work Plan must be submitted to and approved by Council prior to the demolition of any structures .
Reason
To ensure appropriate occupational health and environmental safety standards are in place relevant to the potential hazards.

21. All demolition works are to be carried out in accordance with Australian Standard AS 2601-2001 “Demolition of Structures”, with all waste being removed from the site. Hazardous waste such as asbestos cement sheeting etc, being handled, conveyed and disposed of in accordance with guidelines and requirements from NSW Workcover Authority. Disposal of asbestos material at Council’s Waste Depot requires prior arrangement for immediate landfilling.

Reason
To ensure that all wastes including asbestos waste is handled and disposed of safely and in an appropriate manner.

22. Following completion of demolition works, the Environmental Health & Safety Specialist shall issue a clearance Certificate for the subject property indicating that the property is suitable for reoccupation or residential uses associated with the subdivision. Details shall be supplied to Council prior to the reoccupation of the subject property.

Reason

To ensure prescribed measures identified in the Work Plan have been complied with and the subject land is suitable for human occupation.

23. The control of erosion and the prevention of silt discharge into drainage systems and waterways will be necessary in accordance with Council’s “Engineering Requirements for Development”, Department of Conservation and Land Management's 'Urban Erosion and Sediment Control’ requirements and the Department of Housing ‘Soil and Water Management for Urban Developments’. Erosion control measures are to be implemented prior to the commencement of any earthworks and shall be maintained until satisfactory completion and restoration of site earthworks, including revegetation of all exposed areas.

Reason

To ensure protection of the environment by minimising erosion and sediment

24. The Yellow Bloodwood community on Lot 1 is to be conserved and gaps in its connectivity be revegetated with locally sourced seed as shown in Figure 5 of the report titled ‘7- part test for Lot 2 DP 840845 Ferguson Road, Abernethy’ dated 9 September 2006 and prepared by ECOhub Sustainability Consultants.

Reason

To ensure protection of the environment by preserving and enhancing native vegetation

25. This consent permits the removal of trees, shrubs & other plants from the site of the approved roads and drainage. No other trees, shrubs or other plants on the land (other than as exempted by Council's adopted tree preservation order) shall be damaged or destroyed, including the severing, ringbarking or lopping of branches, limbs, stems or trunks or a tree, shrub or other plants, without the written consent of the Council.

Reason
To ensure that only trees and vegetation directly affected by the development are removed from the site, and to grant approval for such removal.

26. Within the area of the proposed APZ of Lot 6 and Lot 11, any clearing must be in accordance with the recommendations of the Bushfire Hazard Solutions Report dated October 2008 and the Ecohub Pty Ltd report dated October 2008

Reason

To ensure that only trees and vegetation directly affected by the development are removed from the site, and to grant approval for such removal.

27. All vegetation cleared from the site is to be contained within the site during subdivision works unless otherwise approved by Council.

Reason
To ensure noxious weeds identified on the site are not transferred.

28. The registered proprietor of the land shall take all reasonable measures to ensure that any hollow bearing trees will not be disturbed by fencing activities or construction of access roads.

Reason

29. This consent does not authorise the clearing of land in contravention of any other Act or instrument made under an Act concerned with soil erosion, protection of riverbank vegetation or catchment areas or the like, or threatened species, populations or communities.

Prior to any clearing of the subject land, the registered proprietor of the land shall obtain the any relevant approval required under the Native Vegetation Conservation Act, 1979, and/or the Threatened Species Conservation Act, 1995.

Reason
To ensure compliance with relevant legislation.

30. Should any archaeological sites be uncovered as a result of site clearing works, all work shall cease and the National Parks and Wildlife Service shall be consulted for their requirements.

Reason
To ensure any potential archaeological sites are not destroyed.

31. The applicant is to advise Subdivision and Engineering co-ordinator at least 48 hours prior to commencement of any construction works on site or associated with the site, together with the approved contractor's name and address.

Reason
To enable orderly scheduling of inspections.

32. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards.

Reason
To ensure that all excavations on the site are maintained in a safe condition.

33. Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

Each toilet provided:

(a) must be a standard flushing toilet, and
(b) must be connected:
(i) to a public sewer, or
(ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or
(iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.
Reason
To ensure that the development, when constructed, will comply with the Environmental Planning and Assessment Act, 1979.

34. Construction, demolition and associated work shall be carried out only between the times stated as follows:-

Mondays to Fridays 7.00a.m. to 6.00p.m.
Saturdays 8.00a.m. to 1.00p.m.
Sundays & Public Holidays No construction work to take place.
Reason
To ensure that the environmental quality of adjoining land is not adversely affected, such as by the generation of excessive noise levels.

35. The registered proprietor of the land shall be responsible for all costs incurred in the necessary relocation of any services affected by the required construction works. Council and other service authorities should be contacted for specific requirements prior to commencement of any works.

Reason
To ensure that any required alterations to utility infrastructure are undertaken to acceptable standards at the developer’s cost.

36. The access road in accordance with Council’s ‘Engineering Requirements for Development’ to serve the subdivision shall be completed prior to the release of the Subdivision Certificate.

Reason

To provide appropriate means of access to the development.

PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE

General

37. A final plan of survey, prepared by a Registered Surveyor, and seven (7) copies for endorsement by Council are to be submitted with the application for a Subdivision Certificate.

Reason

To enable the linen plan to be legally made

38. The revegetation of the Yellow Bloodwood community on Lot 1, upon completion, is to be certified by an Ecologist as having been carried out in accordance with recommendations of the ECOhub sustainability report dated 9th September 2006.

39. The applicant shall upgrade the existing grassed swale drain within Munn Street west of Munro Street to cater for the subdivision. The extent of upgrading works shall be incorporated within the Construction Certificate plans for the civil works. Construction works shall be completed prior to the release of the Subdivision Certificate.

Reason

To ensure appropriate drainage to cater for the subdivision.

40. The applicant shall submit to Council evidence that the requirements of Energy Supplier, the Hunter Water Corporation and telecommunications authorities have been met in regard to the provision of services provided by those authorities to the subdivision. Such evidence shall be submitted to and approved by Council prior to endorsement of the final plan of survey and release of the Subdivision Certificate.

Reason

41. Certification shall be submitted to Council by a Registered Surveyor, prior to endorsement of the final plan of survey and release of the Subdivision Certificate that all services and domestic drainage lines are wholly contained within each of the respective lots or covered by a suitable easement.

Reason
To ensure that all services are wholly contained within each new lot created.

42. The registered proprietors of the land shall connect lots 1 – 11 in the proposed subdivision to the Hunter Water Corporation water reticulation or to an approved alternative water supply and shall meet all the requirement of Hunter Water Corporation prior to the issue of the Subdivision Certificate.

Reason
To ensure that adequate provision of services are made to each new lot.

43. Evidence shall be submitted to Council that the registered proprietors of the land on whose behalf the application was made have complied with the requirements of Section 50 of the Hunter Water Board (Corporatisation) Act 1991. Such evidence shall be submitted to Council prior to the release of the final plan of survey for the subdivision and the Subdivision Certificate.

Reason
To ensure compliance with the Hunter Water Corporation requirements for the supply of water and sewerage to the new lots created.

44. The applicant shall provide Council or the Private Certifying Authority with a site report from a geotechnical engineer detailing the site classification of each lot within the subdivision in accordance with the provisions of AS 2870.1 1988 prior to the release of the Subdivision Certificate.

Reason
To ensure that the proposed lots have adequate foundation material to support future residential development.

Bushfire

45. The applicant shall provide Asset Protection Zones within the subdivision in accordance with the requirements of the Rural Fire Service and the Bushfire report by Building Code and Bushfire Hazard Solutions dated October 2008. Such Asset Protection Zones shall be nominated on the plan of subdivision along with the suitable 88B instrument setting out the APZ maintenance requirements prior to release of the Subdivision Certificate.

Reason
To ensure protection of the environment and occupants of the subdivision.

Stormwater and Drainage

46. The registered proprietor of the land shall prepare a Plan of Management for the on-site stormwater detention facilities within each individual lot. The Plan of Management shall set out all design and operational parameters for the detention facilities including design levels, hydrology and hydraulics, inspection and maintenance requirements and time intervals for such inspection and maintenance. The plan shall be submitted to and approved by Council prior to issue of the Subdivision Certificate. The Plan of Management shall be included within a suitable 88E instrument under the Conveyancing Act 1919 (as amended) to ensure the ongoing operation of the facility within each lot.

Reason
To ensure the on-going maintenance and operation of the on-site stormwater detention facilities in accordance with the approved design.

47. The applicant shall provide drainage easements a minimum 3.0m wide to drain the site through proposed lots 1, 9 and 11. Construction of the drainage line together with the necessary grated inlet pits shall be carried out in accordance with Council’s ‘Engineering Requirements for Development’. Full details shall be submitted to and approved by Council prior to release of the Subdivision Certificate. A suitable 88B instrument creating the easement, in accordance with the requirements of the Conveyancing Act 1919, shall be submitted to Council prior to endorsement of the Surveyor’s transparency. Construction shall be completed prior to endorsement of the Surveyor’s transparency

Reason

To provide the necessary legal right to drain through adjoining lots where necessary

48. The applicant shall provide an inter allotment drainage easement 1.5m wide to drain proposed Lots 7, 8, 9 and 10. Construction of the drainage line together with the necessary grated yard inlet pits shall be carried out in accordance with Council’s ‘Engineering Requirements for Development’ - full details shall be submitted to and approved by Council prior to release of the Subdivision Certificate.

Note:
(a) A suitable 88B instrument creating the easement, in accordance with the requirements of the Conveyancing Act 1919, shall be submitted to Council prior to endorsement of the Plan of Subdivision or release of the Subdivision Certificate.
(b) Construction shall be completed prior to endorsement of the Surveyor’s transparency.

Reason

To provide the necessary legal right to drain through adjoining lots where necessary.

49. The applicant shall prepare a suitable 88E instrument to incorporate restrictive covenants which ensures that the future owners of each lot install and maintain the independent approved pumping system on each lot. Such 88E instrument shall be prepared and registered on the title of each lot and shall ensure that Council are the body empowered to release vary or modify the covenant

To ensure effective installation of alternative fire fighting capabilities on each lot.

50. The registered proprietors of the whole of the land contained within the plan of subdivision shall, prior to the issue of a Subdivision Certificate and endorsement and release of the final plan of survey enter a positive covenant over lots 1 to 11 inclusive within the plan of subdivision providing as follows:-

i. In association with the Construction Certificate for any building comprising facilities requiring on-site disposal of effluent on the nominated lots 1 to 11 shall prepare an application for an on-site effluent disposal system in accordance with Section 68 and 68a of the Local Government Act 1919 to accompany such Construction Certificate.

ii Such effluent disposal system and its associated on site field irrigation area on each individual lot shall be designed in accordance with the report titled ‘Wastewater Management Study – Proposed residential subdivision Lot 2 Ferguson Street, Abernethy NSW – Martens & Associates, October 2008’.

iii The minimum site field irrigation area shall be 266m² or as amended from time to time by alternative industry best practice system developments.
iv Providing that the Cessnock City Council (the prescribed authority) will be the entity entitled to release vary or modify the covenant.

The endorsed 88B instrument shall be submitted to Council prior to Councils endorsement of the final plan of subdivision and release of the Subdivision Certificate.
All cost associated with the covenant, including any legal costs payable by Council are to be paid by the owner on whose behalf the applicant has lodged the application.
Reason
To ensure suitable on-site irrigation areas and systems are provided to each lot in the subdivision.

51. The registered proprietors of the whole of the land contained in the plan of subdivision shall, prior to endorsement and release of the final plan of survey and subdivision certificate at their costs and expense, enter a positive covenant over all of the land comprised in the plan of subdivision providing as follows:-

i) Covenanting with the Council (the prescribed Authority) to, and at the cost of individual owners, install an individual on-site stormwater detention system on each lots 2-11 concurrently with the construction of any improvements on the land. Such stormwater detention system shall be construction in accordance with the approved design plans and at a location that captures all impervious areas from the site.

ii) As part of the stormwater detention system, provide a rainwater garden within each individual lot prior to discharge from the stormwater detention system. Such rainwater garden shall be constructed in accordance with the approved design.
iii) Prepare a plan of management which considers but which may not be limited to the following heads of consideration:

1) Rural Fire Services
2) Rainwater tanks
3) On-Site stormwater detention
4) Inter-allotment drainage
5) Water supply
6) Rain garden
7) Pump noise
8) Sewerage management
9) Building & other setbacks
10) Vegetation management
11) Sediment & erosion control
12) Waste management
13) Site access
14) Landscaping

A positive covenant under S88E Conveyancing Act shall burden each lot requiring the registered proprietor to comply with the Plan of Management to ensure the ongoing maintenance requirements and time intervals for such maintenance and inspections.

All costs associated with the Covenant, including any legal costs payable by Council, are to be paid by the owner on whose behalf the applicant has lodged the application.

Reason
To ensure that on-site stormwater detention facilities are maintained to an appropriate standard

52. The registered proprietor of the land shall prepare an 88E instrument over proposed lots 2 to 6 contained within the plan of subdivision prior to endorsement and release of the plan of subdivision and subdivision certificate, at their cost and expense as follows:-

(a) The registered proprietor of the lots 2-6 shall ensure the ongoing retention of the landscape strip at the rear of Lots 2 to 6. Maintenance shall incorporate replacement where necessary of damaged or dead trees and shrubs for a period of 24 months.

Providing that the Cessnock City Council (the prescribed authority) will be the entity entitled to release or modify the covenant.

All costs associated with the Covenant, including any legal costs payable by Council, are to be paid by the owner on whose behalf the applicant has lodged the application.
Reason
To ensure that on-site stormwater detention facilities are maintained to an appropriate standard.

53. The registered proprietor of Lot 1 shall prepare an 88E instrument over proposed lot 1 contained within the plan of subdivision prior to endorsement and release of the plan of subdivision and subdivision certificate, at their cost and expense as follows::-

(a) ensure the ongoing retention and maintenance of the existing native vegetation at the outlet of the level spreader at the termination of the proposed drainage line within lot 1.
(b) Such native vegetation acting as erosion protection shall not be cleared, removed, modified or affected in any way so as to not adequately perform the function of erosion protection at the level spreader outlet.
(c) Providing that the Cessnock City Council (the prescribed authority) will be the entity entitled to release or modify the covenant.
Reason
To ensure that on-site drainage facilities and vegetation are retained.

54. The Section 88B Instrument will be submitted to Council with all relevant signatures and company seals (where applicable) prior to endorsement of the linen plan of subdivision and release of the subdivision certificate. Alternatively, Council will accept, at the discretion of the Development Services Manager, a copy of the Section 88B Instrument with an accompanying letter from the acting Solicitor or Surveyor giving an undertaking that the Section 88B Instrument will be signed and submitted as presented to Council, unaltered, to the Land Titles Officer for registration with the linen plan of subdivision.

Reason

To ensure the Section 88B Instrument is submitted to the Lands Titles

Office in the same form as it is submitted to Council

Development Contributions, Monetary Bonds, Dedication of land

55. A monetary Contribution is to be paid to Council, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 towards the provision the provision of public amenities and public services in the contribution types below:

District Open Space - $11000
District Community Facilities (Hall) - $6740
District Community Facilities (Libraries) - $1800
District Community Facilities (Bushfire) - $500
District Roads (Urban Areas) - $8380
Studies (Plan Preparation) - $630
Plan Administration - $2400

At this time the total contribution required is $31450.00.and is to be paid prior to the release of the Subdivision Certificate. Any offset the applicant may be entitled to shall be set off against the amount payable.

NOTE:

A copy of the Residential Section 94 Contributions Plan may be inspected at Council’s Customer Services Section, Administrative Building, Vincent Street, Cessnock or can be accessed on Council’s Website:

The amount of contribution payable under this condition has been calculated at the date of consent. In accordance with the provisions of the Contributions Plan, this amount shall be indexed at the time of acual payment in accordance with the Consumer Price Index – All Groups – Sydney. Indexation of contributions for payment occurs quarterly, on the first working day of December, March, June and September.
Reason
To assist the Council in meeting the expected increased demand for public facilities and services arising as a consequence of the proposed development, and to ensure that the real value of contributions is not deflated by price movements.

56. Payment of the subdivision endorsement fee is to be received prior to release of the final plan of survey. Currently, this endorsement fee is $120.00 per lot. This fee is adjusted annually and the fee to be paid will be the applicable fee at the time of lodgement of the final plan of survey for endorsement and Subdivision Certificate application.

Reason
To ensure that the developer meets all costs associated with the release of the final plan of subdivision.

57. The proposed road within the subdivision shall be dedicated as a public road at no cost to Council. The public road shall be delineated on the final plan of subdivision submitted with the application for a Subdivision Certificate.

Reason

To ensure adequate physical and legal access is available to each new allotment

_________________________

ljr

ADVICE

1. The applicant shall lodge payment of fees and contributions as follows:-

Based on a road length of approximately 360 metres. Final bond amounts will be levied on accurate dimensions contained within the engineering plans.

(i) Road fees - engineering plan checking and supervision of $8,840.00.
(ii) A performance bond of a minimum of $1000 or 5% of the contract construction costs, whichever is greater (transferable).
(iii) A road maintenance bond of a minimum of $1000 or 5% of the contract construction costs, whichever is greater (refundable).

It will be necessary for the applicant to submit evidence of the contract price of all construction works in order for Council to assess accurate bond amounts. If no contract price is submitted, Council will estimate the value of construction works.

The fees and bonds shall be payable prior to release of the Construction Certificate for the Civil Works and/or release of the Subdivision Certificate and shall be in accordance with Council’s adopted fees and charges current at the time of payment.
Reason
To meet costs associated with the approval of engineering plans and inspection of construction works.

2. The applicant shall pay Detention Basin(s) engineering checking and site supervision fees in accordance with Council’s adopted fees and charges prior to release of a Construction Certificate for the site. Council’s current fee is $387.00 per basin for basins 50m³ to 500m³. Final fee amounts will be levied on accurate dimensions contained within the engineering plans and in accordance with Council’s adopted fees and charges current at the time of payment.

Reason
To meet costs associated with the approval of engineering plans and inspection of construction works.

3. Payment of the subdivision endorsement fee is to be received prior to issue of the Subdivision Certificate. This fee is adjusted annually and the fee to be paid will be the applicable fee at the time of lodgement of the surveyor’s transparency.

Reason

To meet Councils reasonable costs for the subdivision certificate.

SCHEDULE 2

Integrated Approvals

NSW Rural Fire Service Bush Fire Safety Authority under Section 100B of the Rural Fires Act 1997

1. The development proposal is to comply with the revised subdivision layout identified on the drawing prepared by Building Code and Bushfire Hazard Solutions numbered 90149, dated 24.10.2008.

Asset Protection Zones
The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building.

2. At the commencement of building works the entire property shall be managed as an outer protection area (OPA) as outlined within section 4.1.3 and appendix 5 of Planning for Bush Fire Protection 2006 and the NSW Rural Fire Service's document 'Standards for asset protection zones'.

Water and Utilities
The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bush fire, and to locate gas and electricity so as not to contribute to the risk of fire to a building.

3. Water, electricity and gas are to comply with section 4.1.3 of Planning for Bush Fire Protection 2006.

Access
The intent of measures for public roads is to provide safe operational access to structures and water supply for emergency services, while residents are seeking to evacuate from an area. To achieve this, the following conditions shall apply:

4. Public-Road Access shall comply with section 4.1.3 (1) of Planning for Bush Fire Protection 2006 for the proposed road.

General Advice - Council to Note
Any further development application for class 1, 2 & 3 buildings as identified by the Building Code of Australia must be subject to separate application under section 79BA of the EP & A Act and address the requirements of Planning for Bush Fire Protection 2006.

25/03/2009 - Add Addendum - Paragraph(s) 46A

CITATION:	Abernethy Developments Pty Ltd v Cessnock City Council [2009] NSWLEC 1079 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Abernethy Developments Pty Ltd RESPONDENT Cessnock City Council
FILE NUMBER(S):	10679 of 2008
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- subdivision, bushfire risk, adequacy of services, drainage, character of development, public interest.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Cessnock Local Environmental Plan 1989 Cessnock Development Control Plan 2006 State Environmental Planning Policy 55 – Remediation of land. Hunter Regional Environmental Plan 1989. Hunter Regional Environmental Plan 1989 Heritage
DATES OF HEARING:	3/02/2009 and 4/02/2009
DATE OF JUDGMENT:	13 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr G. McKee, solicitor of McKees Legal Solutions RESPONDENT Mr R. Mallik, solicitor of Mallik Rees