Bulevi Pty Ltd v Wingecarribee Shire Council
[2010] NSWLEC 1286
•22 October 2010
Land and Environment Court
of New South Wales
CITATION: Bulevi Pty Ltd v Wingecarribee Shire Council [2010] NSWLEC 1286 PARTIES: APPLICANT
RESPONDENT
Bulevi Pty Ltd
Wingecarribee Shire CouncilFILE NUMBER(S): 10556 of 2010 CORAM: Fakes C KEY ISSUES: CONSENT ORDERS :- multiple occupancy on land subject to concurrence from Rural Fire Service, Sydney Catchment Authority and Hawkesbury Nepean Catchment Management Authroity; orders agreed LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Wingecarribee Local Environmental Plan 1989DATES OF HEARING: 22/10/10
DATE OF JUDGMENT:
22 October 2010EX TEMPORE JUDGMENT DATE: 22 October 2010 LEGAL REPRESENTATIVES: APPLICANT
Mr Lawrence [director]RESPONDENT
Mr Staunton [barrister]
SOLICITORS
B. Bilinsky & Co
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESFakes C
10556 of 2010 Bulevi Pty Ltd v Wingecarribee Shire Council22 October 2010
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
JUDGMENT
1 COMMISSIONER: This is an appeal made under s97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Wingecarribee Shire Council (the council) to grant consent for Development application DUA09/0198 for a 3 dwelling multiple occupancy on Lot 13 DP857632 Darlington Place Hill Top (the site).
2 The council refused the application on the basis of insufficient information to enable council and the relevant government agencies required to grant concurrence, to adequately fulfil their statutory obligations under s 79C of the EPA Act. In addition, a SEPP 1 objection included in the Statement of Environmental Effects infers subdivision of the multiple occupancy, something not permitted under cl 16 of the Wingecarribee Local Environmental Plan 1989 (WLEP). Refusal was also based on council’s assessment that the application did not adequately address the site’s suitability for multiple occupancy having regard to matters listed for consideration under cl 16 (3)(a) to (i) of the WLEP. These reasons for refusal form the basis of council’s contentions.
3 The site is zoned rural 1(a) under the Wingecarribee LEP 1989. Clause 16 allows multiple occupancy development, with consent, on land greater or equal to 40 ha in area.
4 The site is approximately 67.9 ha in size and is covered in dense native woodland with only 6% being highly disturbed cleared land. The vegetation is listed as equal areas of Bargo Brush Forest, and endangered ecological community, and Hawkesbury Sandstone Woodland. It is adjacent to Nattai National Park and crown land to the north and to the south by Zone RU4 – rural small holdings.
5 The site contains rocky escarpments and intermittent water courses and drainage depressions.
6 Field studies reveal potential habitat for 23 threatened species on the site with calls of the Red-crowned Toadlet (listed as Vulnerable – Schedule 2 Threatened Species Conservation Act 1995 (TSC Act)) identified and the recording of Persoonia glaucescens (listed as Endangered – Schedule 1 TSC Act).
7 The entire site is mapped as having a high bushfire threat. The archaeological potential is assessed as low to moderate.
8 As a consequence of the location and characteristics of the site, the concurrence of the Sydney Catchment Authority, Rural Fire Service and the Hawkesbury Nepean Catchment Authority is required.
9 Subsequent to council’s refusal, the applicant has provided additional information to enable the application to be properly assessed.
10 The council’s bundle of documents contains an undated planning report to council that addresses each of the relevant provisions of the WLEP and the requirements under s79C of the EPA Act. Each of the provisions is satisfied and the development is recommended for consent subject to appropriate conditions.
11 As the contentions between the parties have been resolved they are seeking Consent Orders from the Court. In accordance with the “Practice Note – Class 1 Development Appeals (cll35 and 36) the “consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account”. I note that there were no objectors in this appeal.
12 I am satisfied that the proposed orders comply with the relevant clauses of the WLEP and that the conditions meet the requirements of the other relevant consent authorities as required under s 79C of the EPA Act I therefore accept that the granting of Consent Orders is appropriate in the circumstances
13 The Orders of the Court, by consent are:
- 1. Appeal No. 10556 of 2010 is upheld
2. Development application LUA09/0189 is approved in accordance with the conditions in Annexure A
3. Each party agrees to pay its own costs
4. The exhibits are retained.
_____________________________________
Commissioner of the Court
1. Compliance
- This consent is for a three (3) dwelling Multiple Occupancy which includes the 3 bedroom dwelling depicted in LUA07/0614, plus two (2) additional dwellings.
Development is to take place in accordance with the approved plans and documentation submitted with the application and subject to the conditions below, to ensure the development is consistent with Council's consent
2. Construction Certificate
- The building works are not to commence until a Construction Certificate has been issued in accordance with the Environmental Planning and Assessment Act 1979. A Building Code of Australia assessment has not been undertaken on the proposal. For further advice you may contact Council's Building Surveyors.
3. Other Approvals
- Prior to any work commencing, written approval under Section 68 of the Local Government Act 1993 shall be obtained for water and septic systems, from the Council as the appropriate Water Supply Authority.
Separate approval by the Roads Authority is required pursuant to Section 138 of the Roads Act 1993 for any works within the road reserve.
4. Compliance with Relevant Legislation
- Compliance with the Environmental Planning & Assessment Act 1979 and Local Government Act 1993. The Building Code of Australia, SM Codes and adopted Local Policies shall be observed.
5. Construction of Stormwater
- Provision of adequate stormwater drainage infrastructure (pits/pipes/open channels/detention storage) for the conveyance of stormwater passing through the site from upstream, and sourced from the development to a discharge outlet to be approved by the Development Control Engineer. The point of discharge is to be clearly depicted and the legal right to discharge at that point to be justified. Status of the point of discharge is to be made clear, ie provision of drainage easements.
6. Vehicle Access (Rural)
- Access to the site must be provided by means of a vehicle crossing as per Standard Drawing No SD110 and approved by the Development Engineer. A copy of the Standard Drawing No SD110 is to be obtained from the Development Engineer before work commences.
7. Driveway Construction
- Construction of accessway surfaced with a suitable 'soft' appearance to complement the landscape scheme to the satisfaction of the Director Environment and Planning. 'Soft' may be interpreted as exposed gravel aggregate except in heritage areas or sites where decomposed granite is approved. Exposed gravel aggregate should be stabilised with a minimum of 5% cement. Where grades exceed 5% (ie, 1 :20) the pavement is to be sealed. The driveways are to be a minimum of 4.5 metres wide for dwellings 1 and 2 and 3 metres for dwelling 3 and also comply with Rural Fire Service requirements within the lots.
8. Construction of Water Service
- A water service shall be installed to the development by Council at the applicant's cost.
Council's application form shall be completed by the applicant and the appropriate fee paid.
9. Integral Energy Requirements
- The provision of underground electricity to service the development in accordance with the requirements of Integral Energy. The Applicant prior to release of a Construction Certificate will be required to submit to Council documentary evidence from Integral Energy qualifying that the requirements of Integral energy have been obtained. The requirements of the supply authority will need to be met prior to occupation of the development.
10. Development Approvals
- A further development application must be lodged for the erection of each dwellinghouse or any other work on the land.
The future dwelling-houses must be located as indicated on the ·Site Plan" provided with the Development Application, the plan prepared by Wayne Lawrence dated March 2010.
11. Multiple Occupancy
- The means for establishing and maintaining land ownership, dwelling occupancy right, environmental and community management of the land is not provided with this consent and remains with the land owner.
No approval is given with this consent for the purposes of a motel, hotel, or any other type of holiday, tourist or weekend residential accommodation.
No approval or opportunity is given with this consent for subdivision, strata title or any form of separate land title, the land under this Development Consent will continue to comprise a single allotment. Nothing in this consent is to be construed as authorising the subdivision of land for the purpose of carrying out development.
NOTE: The purpose of Multiple Occupancy development is to encourage and facilitate the development or rural landsharing communities and to enable people to collectively own a single allotment of land and use it as their principal place of residence.
12. Section 94 Contributions
- Roads & Traffic Management Facilities
- Resource Recovery Centre 2009
- Central Library Facility
- Administration Resources
- Open Space & Recreation Facilities
- Under Section 94 of the Environmental Planning and Assessment Act 1979 (as amended), Council has satisfactorily determined that Development Contributions are applicable to this development consent, as the development is likely to require the provision of or increase the demand for public amenities and public services within the Wingecarribee Local Government Area.
The following Wingecarribee Shire Council Developer Contributions Plans are applicable to the Development:
All contributions are indexed quarterly in accordance with upward movements in the Consumer Price Index (All Groups. Sydney) as published by the Australian Bureau of Statistics ( ; Section 251 of the Environmental Planning and Assessment Regulation 2000; and Council's Developer Contributions Plans.
Copies of the Contributions Plans are available at Wingecarribee Shire Council's Administration building Moss Vale or are available for download from Council's website
13. Certificate of Compliance
- A Certificate of Compliance under Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000 must be obtained prior to the issue of Construction Certificate.
Notes
Section 64 of the Local Government Act 1993 authorises Council to issue Certificates of Compliance under Section 306 of the Water Management Act 2000. Section 64 of the Local Government Act 1993 also authorises Council to impose pre-conditions to the issuing of Certificates of Compliance.
As a precondition to the issuing of a Certificate of Compliance Council requires the payment of Developer charges as prescribed by Wingecarribee Shire Council's Development Servicing Plans:
- Water Supply Development Servicing Plan
- A developer Charges - Notice of Payment is attached to the back of this consent and outlines monetary contributions and unit rates applicable at the time of issue of this consent.
The water and sewer head works levies are indexed quarterly in accordance with upward movements in the Consumer Price Index (All Groups, Sydney) as published by the Australian Bureau of Statistics ( ; and Council's Development Servicing Plans. However, incremental adjustments above CPI will be applied by Council in accordance with the table below.
Copies of Development Servicing Plans are available at Wingecarribee Shire Council's Administration bUilding Moss Vale or are available for download from Council's website
The Water Development Servicing Plan (DSP) was adopted by Council on 22 November 2006 and came into effect on 1 January 2007. The new charges are to be phased in as detailed below:
| DSP | Contribution Rate $/per ET | Date Charges are Valid to |
| Water Supply Development Servicing Plan | $5683 | 31 October 2010 |
| Note: The charges shown above are amounts to be implemented on the subject dates. These amounts will be SUbject to adjustment quarterly in accordance with upward movements in the Consumer Price Index (CPI) once they become o rational. The CPI is ublished uarterl b the Australian Bureau of. Statistics, | ||
- Should new DSP's be prepared, it is possible that the charges may increase significantly. Draft DSP's must be advertised by Council for a period of 30 working days prior to adoption.
Compliance Certificate
Compliance Certificate fees, in accordance with Council's Revenue Policy are as follows and shall be paid prior to the issue of (Subdivision / Construction / Occupation) Certificate:-
Water - (141901-1536) $90.00
Prior to final release, you will need to contact Council's Technical Services Division for an inspection to ensure that Council will accept the infrastructure constructed. In response the Manager of Water and Sewer will specify requirements which will have to be met.
In the case of subdivision, the title plan of subdivision will not be certified and released by Council until the Water Management Act charges have been paid and/or secured and the approval of Council has been obtained for all works related to this infrastructure.
In the case of other forms of development, the Construction Certificate will not be issued until the Water Management Act charges have been paid and/or secured and the approval of Council has been obtained.
14. NSW Rural Fire Service Section 100B conditions
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 below critical limits and to prevent direct flame contact with a building.
(i) The proposed building envelope indicated as dwelling 1 requires an Asset Protection Zone of 20 metres to the north, 25 metres to the east, 10 metres to the south and 25 metres to the west. The asset protection zone should be maintained as an inner protection area (IPA) 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 asst protection zones'.
(ii) The proposed building envelope indicated as dwelling 2 requires an Asset Protection Zone of 25 metres to the north, 20 metres to the east, 10 metres to the south, and 20 metres to the west. The asset protection zone should be maintained as an inner protection zone (IPA) 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'.
(iii) The proposed building envelope indicated as dwelling 3 requires an Asset Protection Zone of 25 metres to the north, 25 metres to the east, 10 metres to the south, and 20 metres to the west. The asset protection zone should be maintained as an inner protection zone (IPA) 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 asst protection zones'.
(iv) The Asset Protection Zones above are based on an owner occupied dwelling. Further assessment will be required if this is not the case.
- 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.
(v) A dedicated water supply for fire fighting purposes may be required for each dwelling on each of the three indicated sites. Please contact the Rural Fire Service for details prior to lodging subsequent development applications for each dwelling.
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.
(vi) Property access roads that service three or more dwellings shall comply with section 4.1.3(1) of Planning for Bush Fire Protection 2006.
15. Native Vegetation Removal and Management
- The Hawkesbury Nepean Catchment Authority have advised the following in relation to the proposal in terms of the Native Vegetation (NV) Act 2003
(i) Clearing of native vegetation for Dwelling 1, its APZ, water tank, effluent system and house driveway does not require approval under the NV Act;
(ii) Infrastructure that is not closely associated with the Dwelling 1 may need approval under the NV Act;
(iii) The 2 nd and 3 rd dwellings and all infrastructure associated with those dwelling will require approval under NV Act;
(iv) Any clearing within the boundaries of the asset protection zone dimensions, but greater than the intensity of clearing provided in Council's Development Consent will require approval und the NV Act;
(v) The location and purpose of the Proposed Emergency Evacuation and Fire Trail should be clarified, and we recommend that if the Trail is necessary then it be located within the outer edges of the asset protection zones;
(vi) Except for driveways to the proposed dwellings, there should be no further access tracks established on this property;
(vii) Any essential fences must be constructed without clearing (except for hand clearing of selected shrubs). Any fences in these areas should be of plain wire only, to permit movement of wombats, kangaroos etc, without causing injury or death; and
(viii) The proposed underground electricity supply to each proposed new dwelling should be located along the edge of the private driveways so as to prevent additional clearing of native vegetation.
16. Conditions of the Sydney Catchment Authority
- effluent irrigation areas shall each have a minimum size of 2000 square metres;
- The following are the requirements of the Sydney Catchment Authority with regard to Drinking Water Catchments Regional Environmental Plan No 1:
(i) The proposed works and site layout are to be as specified in a Multiple Occupancy Report (Author and date not specified) and shown on the Site Plan prepared by Bulive Pty Ltd (dated September 2010). Any revised works or site layout is to be agreed to by the Sydney Catchment Authority;
Reason for Condition (i) - The Sydney Catchment Authority has based its assessment under the Drinking Water Catchments Regional Environmental Plan No 1 on this version of the proposed development.
Wastewater Management for Home Sites
(ii) Each home site shall install an aerated wastewater treatment system including the effluent irrigation area which must be designed, located and installed in accordance with the recommendations in the Wastewater Site Assessment Report prepared by SEEC Morse McVey (dated 12 February 2009). but with the following specific requirements and modifications:
- effluent irrigation areas shall be located within the "Effluent Management Area" shown on the Site Plan (dated September 2010) and the irrigation areas for home sites 2 and 3 are located to ensure a minimum 100 metres buffer to watercourses located to the west of these home sites;
- irrigation disposal either employ surface irrigation with fixed sprinkler points using quick-coupling valves or similar or by subsurface means using a wickbased system or pressure compensating drip emitters with root barriers, with sprinklers or drip emitters to be evenly distributed throughout the irrigation area;
- effluent irrigation areas shall be divided into four approximately equal irrigation fields and irrigation systems must be fitted with an automatic sequencing valve that enables different parts of the irrigation areas to be utilised at anyone time;
- effluent irrigation systems must be hydraulically designed and tested to ensure there is uniform delivery to all parts of the irrigation areas;
- effluent irrigation areas shall be fenced off from livestock and vehicles;
- effluent irrigation areas shall be grassed with a suitable grass species to assist evapotranspiration and nutrient uptake;
- effluent irrigation areas shall be mown regUlarly with grass clippings to be disposed of outside the irrigation area;
- effluent distribution pipes from the tanks to the irrigation areas shall be buried at a minimum depth of 300mm and in a manner that provides protection against mechanical damage or deformation;
- pumps with sufficient capacity shall be provided to ensure effective and even delivery of effluent to and throughout the delivery areas;
- all run-on and stormwater from access driveways and any other hard surface areas is to be diverted away from the effluent irrigation areas, e.g. by means of a stabilised bund or drain with provision for energy dissipation at the outlet to prevent scouring or erosion;
(iii) The on-site wastewater management systems shall be maintained according to Section 5 of the Department of Local Government's guidelines On-site Sewage Management for Single Households (199B) and AS/NZS 1547:2000 On-site Domestic Wastewater Management, and the manufacturer's requirements;
(v) No effluent management areas are to be located within 150 metres of a named river, 100 metres of any perennial or intermittent creek or watercourse, or within 40 metres of a dam or drainage depression. In this regard it is noted that watercourses are located approximately 100 metres to the west of proposed home sites 2 and 3;
(vi) These conditions of consent relating to wastewater management must be provided to the installer of the on-site wastewater management systems;
Reason for Conditions (ii) to (vi) - To ensure that the on-site wastewater management systems will have a sustainable neutral or beneficial effect on water quality over the longer term.
Access Driveways for Home Sites
(vii) Access driveway to each home site shall be constructed with compacted roadbase (aggregate) and the construction of access driveway shall incorporate a series of spaced level spreaders, sills or mitre drains where appropriate and possible, to divert water onto a stable surface capable of accepting concentrated water flow and which provides for efficient sediment trapping and energy dissipation;
Reason for Condition (vii) - To ensure the access driveways to the home sites and associated drainage works are appropriately managed and maintained over the longer term so as to ensure an overall and sustainable neutral or beneficial impact on water quality.
Stormwater Management for Home Sites
(viii) Rainwater tanks with a minimum total capacity of 20,OOOL are to be installed for the collection of rainwater from the roof of each dwelling and associated sheds. Roof drainage is to be constructed in such a manner that all rainwater is directed to rainwater tanks with the overflow to be directed to the stable surface with energy dissipation at the outlet. The rainwater tanks are as a minimum to be plumbed to toilets and other non-potable uses such as landscape irrigation;
Reason for Condition (viii) - To ensure storm water runoff from the dwellings and sheds is appropriately managed so as to ensure an overall and sustainable neutral or beneficial impact on water quality over the longer term.
(ix) Effective erosion and sediment controls are to be installed prior to any construction activity, including earthworks for the dwellings and site access. The controls must prevent sediment entering drainage depressions and watercourses and are to be regularly maintained and retained until works have been completed and groundcover established.
- Reason for Condition (ix) - To manage adverse environmental and water quality impacts during the construction stage of the development and to minimise the risk of erosion, sedimentation and pollution within or from the site during this construction phase.
Notice of Payment - Developer Charges & Section 94
8 October 2010
Bulive Pty Ltd ACN003116658 or Nominee
PO Box 83
TERRY HILLS NSW 2084
Re: LUA09/0189 - Multiple Occupancy
Lot 13 DP 857632 Darlington Drive, Hill Top
Water and Sewerage Headworks charges are levied under Section 64 of the Local Government Act and Section 306 of the Water Management Act 2000. Other contributions are levied under Section 94 of the Environmental Planning and Assessment Act1979 and Council's Section 94 Contributions Plans.
Contributions Levy Units Rate Amount Payable
Plan Administration - Precinct 9 2 $418.00 $836.00
Central Library - Precinct 9 2 $356.40 $712.80
Open Spaces - Precinct 9 2 $4,099.70 $8,199.40
RRC Shirewide - Precinct 9 2 $211.45 $422.90
Roads SP1 - Precinct 9 2 $963.60 $1,927.20
OS Shirewide - Precinct 9 2 $1,322.20 $2,644.40
Water Supply - Precinct 9 2 $5,681.50 $11,363.00
Section 64 Water Compliance Certificate 1 $90.00 $90.00
Developer Contributions Total $26,195.70
IMPORTANT - The charges shown above are valid for payment until the date given below. After this period the charge will need to be recalculated due to adjustments in the Consumer Price Index.
Cashier Receipt No:
Total Paid:
Date Paid:
0
0
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