Eastbrook Pastoral Pty Ltd v Muswellbrook Shire Council

[2014] NSWLEC 1144

Land and Environment Court

New South Wales

Medium Neutral Citation:	Eastbrook Pastoral Pty Ltd v Muswellbrook Shire Council [2014] NSWLEC 1144
Hearing dates:	3 & 4 July 2014. Agreed conditions filed 15 July 2014
Decision date:	22 July 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Development application: subdivision, whether minimum allotment provisions of LEP apply to community title subdivision, adequacy of water and sewerage services, density, character, visual impacts, earthworks, traffic, impact on road network.
Legislation Cited:	Environmental Planning and Assessment Act 1979; Muswellbrook Local Environmental Plan 2009; State Environmental Planning Policy (Exempt and Complying Development) 2008; Standard Instrument (Local Environmental Plans) Order 2006; Standard Instrument-Principal Local Environmental Plan
Cases Cited:	Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399
Texts Cited:	Muswellbrook Shire Development Control Plan 2009; Muswellbrook Residential and Rural Residential Strategy - Final Report; Walk and Cycle Plan for Muswellbrook and Denman; Building Code of Australia
Category:	Principal judgment
Parties:	Eastbrook Pastoral Pty Limited (Applicant) Muswellbrook Shire Council (Respondent)
Representation:	Mr M Staunton (Applicant) Mr J Cole HWL Ebsworth Lawyers (Applicant) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	10087 of 2014

Judgment

1. Eastbrook Pastoral Pty Ltd lodged development application No 98/2013 seeking consent to re-subdivide States 16-18 of the existing Eastbrook Links Estate in two stages, state one being a two lot subdivision to create a development lot and a residue and stage two, a community title subdivision of the development lot into 167 community title lots of which one is to be a community lot and the remaining 166 lots, development lots for future dwelling construction. Muswellbrook Council refused consent and Eastbrook is appealing that decision.

The site and its context

1. The application proposes the subdivision of Lot 1300 in DP 1164893, known as 8911 New England Highway, Muswellbrook. Lot 1300 is an irregular shaped allotment with an area of 92.78 hectares and has frontages to Gore Street, Henry Dangar Drive and the Highway. It is currently vacant.

1. The Estate is located on the south eastern limit of the Muswellbrook township and is visible from the New England Highway when approached from Singleton. Lot 1300 is at the eastern end of the estate.

1. The site comprises sloping land with scattered trees with fall from the south west to the north east towards the eastern drainage reserve.

1. Land to the north, east and south of the site is rural in character and to the west is residential. Muswellbrook Town Centre is approximately 4 kilometres to the north west.

1. The Estate forms part of a residential subdivision, originally approved in 2005.

Background and the proposal

1. The Estate has developed in stages in accordance with a consent for a subdivision comprising 1,049 lots, which was originally approved by the council on 13 April 2005. That consent has been modified on several occasions, the most recent being in 2010 when the road and lot layout for stages 13-32 were modified. Development was separated into two sectors, the western sector comprising stages 1-12 and the eastern sector, stages 13-32. This application relates to land within the eastern sector of the estate, being approved stages 16-18.

1. The approved plan for stages 16-18 provides for the development of 109 conventional residential lots with areas ranging from an average of 705sqm (in stage 16) to an average of 759sqm in stage 18. Within stages 16-18 there were 14 allotments with areas between 550 and 600 sqm.

1. The proposed development involved the subdivision of the land in two stages and did not seek consent for subdivision works. The first stage is to subdivide Lot 1300 into two lots, a development lot (proposed Lot 101) and a residue Torrens title lot comprising the remaining portion of Lot 1300 (proposed Lot 102). Lot 101 would have an area of 13.04ha and Lot 102 would be 79.74ha.

1. Stage 2 would involve the subdivision of Lot 101 into one community lot comprising three separate parcels of land to be used as a park/landscaped space including land adjacent to the western access road, a park adjacent to the southern boundary and that part of the drainage reserve east of the development lot, west of proposed States 20 and 24 and south of Henry Dangar Drive. 183 community development lots would also be created. These lots would range in area from 345 - 541sqm, with over 70% of the lots being between 350 -399sqm in area and 5% having an area less than 350sqm.

1. The community development lots are proposed to be developed in 4 stages, the first comprising 49 community development lots and the community lot, the second and third each comprising 48 lots and the final stage 38 community lots. At the time the development application was lodged, the Statement of Environmental Effects lodged detailed that consent for subdivision works was not sought and that a subsequent development application for that work would be lodged.

1. Roads and essential infrastructure would be constructed on a stage by stage basis, the subject of future development applications for subdivision works and all roads, sewer, water and stormwater infrastructure would be transferred to council's ownership at the completion of each stage. The landscaped/open space areas would remain in the ownership of the community association.

Amendments to the application

1. So as to address a contention of the Council as to whether the minimum lot provisions prevent subdivision of the site as proposed, the applicant sought and was granted leave to amend the application during the hearing. The council did not oppose the amendment.

1. The change made was to add a stage 1B to the application so that the application before the Court involves a Staged Application pursuant to Section 83B of the Environmental Planning and Assessment Act 1979 (EPA Act):

• Consent to Subdivide Lot 1300 into two Torrens Title allotments, proposed Lots 101 (13.04ha) and 102 (79.74ha) (Stage 1A);
• Consent to Subdivide Lot 101 into two lots, Lot 1, a proposed community title allotment to reflect the proposed roads and community open space and Lot 2, the residential development lot (Stage 1B);
• Concept approval to subdivide the future residential lots as a community title subdivision comprising a total of 165 Torrens title allotments over four stages and to be the subject of a future development application (Stage 2).

1. The application now includes the concept proposal to bench the sites with concrete retaining walls of varying heights constructed along the site boundaries as part of the staged development and subject to a separate development application under s83B(3) of the EPAAct (Stage 2) as the requisite details of the development were not available for assessment.

The planning controls

1. The site is zoned R1 General Residential under Muswellbrook Local Environmental Plan 2009. Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R1 zone are:

• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To enable sensitive infill development of other housing types.
• To allow people to carry out a reasonable range of activities from their homes, where such activities do not adversely affect the living environment of neighbours.
• To promote the principles of ecological sustainable development including energy and water efficient subdivision and housing design.
• To minimise the impact of non-residential uses and ensure these are in character and compatible with surrounding development.
• To ensure that development is carried out in a way that is compatible with the flood risk of the area.

1. Consent is required for the subdivision of land (other than where the subdivision is for complying development or for certain strata subdivisions) pursuant to clause 2.6. The application requires development consent.

1. Part 4 contains Principal development standards and, of relevance to the application is the minimum subdivision lot size contained in clause 4.1 which is in the following terms:

(1) The objectives of this clause are as follows:

(a) to ensure that new subdivisions reflect characteristic lot sizes and patterns in the surrounding locality,

(b) to ensure that lot sizes that create a dwelling entitlement are consistent with lot sizes on adjoining lands,

(c) to ensure that lot sizes have a practical and efficient layout to meet intended use,

(d) to prevent the fragmentation of rural lands.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

1. The Lot Size Map identifies a minimum lot size of 600sqm applies to the site however, in accordance with clause 4.1(4), the development standard does not apply to the subdivision of individual lots in a community title scheme.

1. The contention as to whether the provisions of clause 4.1(4) allow subdivision of the land into lots that have an area less than 600sqm was addressed through the amended plans introducing the additional stage of subdivision creating the residential development lots in a community title scheme, which would be the subject of future development applications for subdivision into housing lots as Stage 2.

1. Clause 7.4 applies to subdivision in the R1 and RU5 zones and is in the following terms:

(1) This clause applies to a subdivision of any land that requires development consent and is in Zone R1 General Residential or Zone RU5 Village.

(2) Development consent must not be granted for subdivision development on the land to which this clause applies until the land is adequately serviced with water and sewerage, or arrangements satisfactory to the consent authority have been made to service it.

1. Muswellbrook Shire Development Control Plan 2009 (DCP) applies to the site and the following provisions are relevant to the development application: Section 5 - Subdivision; Section 6 - Residential Development; Section 20 - Erosion and Sedimentation Control; Section 21 - Contaminated Land; Section 25 - Stormwater Management.

1. The development is Integrated Development and a Fire Safety Authority has been issued by the Rural Fire Service and General Terms of Approval by the Office of Water.

The issues

1. The contentions in the case are:

• Whether satisfactory arrangements have been made to service the land with water and sewerage services;
• Whether the size and dimensions of the proposed allotments are adequate and consistent with the objectives of the DCP;
• Whether the density of the development is excessive and inconsistent with the desired future character of the area or will result in an overdevelopment of the site;
• Whether the development would have an undesirable visual impact;
• Whether the extent of earthworks is appropriate and consistent with the objectives of the DCP;
• Whether the orientation of the proposed allotments will provide an acceptable level of amenity in terms of solar access;
• Whether the subdivision will adversely impact on the local road network or the effective operation of the Bimbadeen Road/New England Highway intersection;
• Whether the development provides a variety of housing types and densities and is consistent with the R1 zone objectives;
• Whether adequate provision is made for stormwater drainage that is consistent with the objectives and controls contained in the DCP;
• Whether adequate provision has been made for access to bus routes, pathway and cycleway connections;
• Precedent;
• Public interest

The evidence

1. The hearing commenced on site with a view undertaken of the existing estate and the extent of proposed works in the company of the parties and their experts. This included observation of the manner in which dwellings had been constructed throughout the estate including some on benched sites and others using pier and beam construction. A community title development in Hunt Place was also inspected.

1. Expert evidence was heard from:

Applicant               Council

Engineering     Mr D England         Mr P Higgins

Planning          Ms E Robertshaw  Mr N Kennan

Engineering

Water and sewer

1. Mr Higgins says that there is an existing problem within the estate whereby lots in stages 11 and 12 are experiencing low water pressure and that this would be exacerbated by the development. In addition, those lots within the site above RL220 would suffer similar conditions. Mr England says there are only two proposed lots above RL220 and a local high pressure zone can be created or individual booster pumps provided for the affected lots. The experts agreed that a condition of consent could be imposed that pressure pumps are installed and Mr England said that a pump installed in one location could address both the existing lots that are experiencing low pressures and proposed lots. They agreed that further modelling of the supply details was required to extend the existing system however that system was, with the pumps installed, capable of providing for the water and sewer needs of the proposal and was available to service the site.

1. The amended plans provide for necessary easement access for proposed sewer services to the lots and consent conditions were prepared that reflect the council's requirements for the provision of water and sewerage services (Exhibit 12). The experts left whether the terms of clause 7.4(2) are met to legal submissions.

Excavation/retaining walls

1. The experts disagreed as to whether the benching of the site was an appropriate design outcome. They agreed that the site is steep and presents significant constraints to development. Grades vary from 9 to 15%. It is the applicant's preference that the sites are benched to allow the construction of slab on ground dwelling houses. This would necessitate the construction of retaining walls along the side boundaries of lots and in some cases, also along the rear boundaries. The concept approval sought for Stage 2 works provides for the integrated construction of those retaining walls as part of the subdivision works rather than leaving the site benching to individual builders/land owners.

1. The height of those walls varies, according to the plans in the appendix to Mr England's Expert Report, Exhibit C, from 400mm to 4.5m. Mr England says that where walls in excess of 2m are required, they could be constructed in two sections and would involve a land take of 1m, thereby reducing the effective length or width of allotments by that amount (Exhibit E) however he considered there would be no reason why walls could not be designed as a single retaining wall so as to optimise the site. The applicant submits that the reason for the reduced lot sizes and widths is to reduce the height of retaining walls with the walls being the responsibility of the Community corporation for management, ongoing monitoring and maintenance including the provision of insurance cover.

1. Mr Higgins says that the height of the walls is excessive and the dwellings are at risk and without a monitoring plan prepared in accordance with AS4678-2002, because of the Class of wall, are likely to require annual inspection by a suitable qualified engineer. He agrees that if approval is ultimately granted to walls of this height then the walls should be the responsibility of the Community Association and be designed, monitored and maintained in accordance with AS 4678 2002 for the life of the walls and that they are also designed to address any possible impacts from salinity.

1. Mr Higgins says that a more appropriate solution would be to create larger lots and mandate construction types that do not include slab on ground type developments and do not require the construction of retaining walls over the requirements provided for in State Environmental Planning Policy (Exempt and Complying Development) 2008 (SEPP2008). This would ensure that the prospective purchasers were not exposed to the costs or risks associated with the monitoring of the walls. He was also concerned that the work involves massive disturbance to existing round which is at risk from erosion and storm damage during the construction period.

1. Mr England says that the costs of the retaining walls are around $25,000 per lot compared to the $50,000 site costs for dwelling construction on a site that is not benched.

1. Mr England cites clause 4.4.4 of the DCP, which provides for dwelling house construction and terracing and retaining walls not more than 1.5m below or 1m above existing ground level within the front setback. The experts agree that it is possible to design walls that accord with the DCP criteria and provide the necessary drainage.

Local road network, traffic and accessibility

1. Mr Higgins says that the eastern roads should be widened and extended to the southern property boundary to facilitate bus access and access to any future development that may occur to the south of the site. The bus link would be looped around lots 318-332 so that all of the lots within the subdivision were within 400m of a bus route. The roads would require widening from 15.5m to 18m with subsequent reduction in lot sizes or landscaped areas. The link to the south was consistent with the masterplan and also land that is identified in the council's strategic document, Muswellbrook Residential and Rural Residential Strategy - Final Report dated February 2014 as a possible release area (Exhibit 13).

1. Mr England says that this is not necessary as the land to the south is not zoned for residential land release and that only 10 of the lots are not within 400m of the bus route that is designated in the masterplan as running along Henry Dangar Drive. This number of lots was similar to that approved by the council in the original consent and therefore was acceptable. Mr Higgins conceded the need was "marginal" when compared to the existing consent.

Cycleways and pathways

1. The experts agree that the grades of the proposed pathways and cycleways are excessive however this is along the nominated cycle route identified in the council's Walk and Cycle Plan for Muswellbrook and Denman. This route runs along Henry Dangar Drive, a road currently constructed up to the western side of the creek line to the east of the site. In addition, a cycleway is to be constructed along the creek and link with the highway and also the south of the site. The application makes provision for that part of the cycleway within the development area along the creek line and Mr England says that the grades will suit both cycling and pedestrian use.

Stormwater

1. The experts agree that this issue can be addressed through consent conditions and the watercourse improvement works will be subject to the Water Controlled Activity Approval by the Office of Water.

1. The council did not press the contention of the impacts to the Bimbadeen Road/New England Highway intersection.

Planning

Lot size

1. Ms Robertshaw says that the designs for the test precinct included in Appendix C to Exhibit A show that the lots are capable of being developed without compromising resident amenity and that each lot is capable of accommodating a building envelope of 200sqm with a minimum dimension of 10m as required by the DCP. The amenity of future residents is capable of being managed appropriately with future dwellings having to be designed to comply with the provisions of the architectural and landscape design guidelines prepared for inclusion in the proposed Community Management Statement (CMS) (Tab 18, Exhibit A) and either Section 6 of the DCP or SEPP2008. She relies on the streetscape outcome as reflected in renders included at Tab 12 of Exhibit A to conclude that the proposal is not an overdevelopment and is characteristic of most new residential estates. In cross-examination, Ms Robertshaw conceded that the renders may not accurately reflect the road curvature nor the extent of retaining walls forward of the dwellings.

1. Whilst Ms Robertshaw agreed that the lot widths did not comply with the DCP requirement of 18m, she said that the community title development would contribute to housing diversity in the area, consistent with the zone objectives. She considered that the retaining walls would not be as high as those that would be constructed under the original consent and that an appropriate building separation would result that would not necessarily be any different if a dwelling was built across an 18m allotment. She considered the proposal to be a more efficient use of the land as it minimised the land take used in earlier stages of the development to retain the lots through the use of stepped retaining walls.

1. Mr Kennan says that the smaller lots will result in poor amenity to the dwellings because of the high retaining walls and reduced side setbacks and solar access and also affect the usability of the site. He considers the 18m width allows for terracing of the site and incorporation of planter beds between the retaining walls which, if appropriately landscaped, would be a better urban design outcome than the high walls proposed. He considers the built form that would result would be too dense and present an unacceptable visual impact due to the proximity of dwellings to each other that would appear as a homogeneous built form rather than buildings that step up the slope. He accepted that a building could be designed to fit on the lots proposed and receive solar access consistent with the DCP requirements however questioned the accuracy of the shadow diagrams provided.

1. He cites objective (b) of the DCP that states "to provide useable areas, lot sizes are increased where sites are steep or contain significant landscape features including water courses and easements". He says this should be considered with the 18m minimum lot width requirement and that only 5 lots comply with that control and the outcome would be inconsistent with the desired future character of residential development hath accords with the minimum prescriptive controls contained in the DCP.

Visual impact

1. Mr Kennan considers the streetscape outcome would be more bulky and the density of development exacerbated through the extent of vertical retaining walls in close proximity to the dwellings. Both experts agreed that the Hunt Place community title development contained dwellings on smaller lots built on or near boundaries however Mr Kennan differentiated this development from that proposed because it was on a relatively flat site and therefore the prominence of the retaining walls was not a factor as it would be in this case. Ms Robertshaw says the built form would be similar and that whilst Hunt Place has different topography, the outcome would be acceptable.

1. Mr Kennan says that the visual impact of such a dense form of development would be unacceptable when viewed from the New England Highway and will look different and more compact to the existing development. He considered the stepped walls and green fencing in the completed stages were not good outcomes but that was the character of the area. Ms Robertshaw says that the landscaping of the creek and the existing trees along the highway will provide appropriate screening of the development and will soften the visual impact.

Findings

1. The changes made to the application during the hearing addressed the threshold issue of permissibility and therefore, the main issues that remain are whether the size of the allotments is appropriate for future residential development with satisfactory amenity, consistent with the planning controls and the whether the extent of excavation is appropriate. In addition, the issue of whether satisfactory arrangements have been made for the provision of water and sewer was the subject of legal submissions.

1. The LEP and DCP must be the focus of the assessment of the application and in particular the objectives of the controls where there are no specific provisions that address community title development.

1. The R1 zone is one of only two residential zones in the whole of the Muswellbrook local government area to which the LEP applies, the other being an R5 Large Lot Residential Zone. Accordingly, the zone permits a wide range of residential uses as follows: Attached dwellings; Bed and breakfast accommodation; Boarding houses; Dual occupancies; Dwelling houses; Group homes; Hostels; Multi dwelling housing; Residential flat buildings; Secondary dwellings; Semi-detached dwellings; Seniors housing and Shop top housing.

1. In addition, a range of non-residential uses are also permitted with consent, consistent with the objectives of the zone. Those objectives particularly relevant to the application are the first two that provide for the housing needs of the community and for a variety of housing types and densities. The development standard for a minimum allotment size of 600sqm applies to all of the land zone R1 in the Muswellbrook town and accordingly, to achieve these objectives, there must be forms of development that are different to single dwelling houses on allotments of 600sqm. These can take the form of multi dwelling housing, residential flat buildings and the like or, in the case of this application, community title development. Because of clause 4.1(4), the 600sqm development standard does not apply to the subdivision of individual lots in a community title scheme. Accordingly, allotments can be smaller if the proposal merits consent.

1. The DCP provides controls for subdivision and for residential development. When considered together, land can be subdivided into lots of size and shape consistent with the provisions of clause 5.5.6. The objectives of those controls are:

a) Lots have an appropriate area and dimensions for the siting and construction of a dwelling and ancillary out buildings, the provision of private out door space and convenient vehicle access and parking.

b) To provide usable areas, lot sizes are increased where sites are steep or contain significant landscape features including water courses and easements.

c) Lot sizes and dimensions enable dwellings to be sited to:

· Protect natural and cultural features;

· Acknowledge site constraints including soil erosion and bush fire risk; and

· Retain special features such as trees and views.

d) Lot sizes shall meet with the projected requirements of people with different housing needs and provide housing diversity and choice.

e) Lot sizes and configurations are to be varied to provide a mix of allotment types which create pleasant streetscapes and encourage a variety of housing types.

f) Lots are to be configured to account for significant natural landscape elements or utility constraints and be designed to minimise environmental impact.

1. The DCP controls require lots with a minimum width of 18m at the building line however provision for consideration of a lesser dimension is made but only as part of an integrated housing development. The application does not propose the construction of dwellings so it is not an integrated housing development. Other controls require lots to be designed to allow the construction of a dwelling with a maximum cut or fill of 1 metre from the natural ground level and to be able to accommodate a building envelope of 200m2 with a minimum dimension of 10 metres.

1. The lots have been designed to allow dwelling construction using slab on ground and therefore, minimal change to the benched site would be required at the time the dwelling was constructed. All earthworks would be undertaken during the subdivision stage.

1. The site view provided evidence of how this control had been implemented to date and relied on stepped retaining walls to the sides of dwellings to achieve a level building platform. Despite the slope of individual sites, there was very little evidence of dwellings being constructed utilising pier and beam construction. The majority of sites were slab on ground. The retaining walls had either been constructed by the builder as part of the site works or in more recent stages, by the developer at subdivision stage. The majority of retaining walls were concrete blocks however the most recent stages, Stages 14 and 15 utilise log walls, some up to 3m in height. There is controversy between the parties whether the retaining walls were approved as part of the Construction Certificate issued by the council (Exhibit J). The validity of the certificate does not require my consideration.

1. The applicant's indicative dwelling plans for the test precinct demonstrate that a dwelling, similar to those observed throughout the Estate during the site view, can be constructed on the proposed allotments. The difference that would be apparent is the separation between dwellings and the vertical rather than stepped retaining walls. These plans demonstrate that there is area available to accommodate a 200sqm footprint and reasonable and usable open space and that the lots are designed so that no additional cut or fill would be required to construct a dwelling house. Mr Robertshaw's evidence is that the dwellings can be designed to achieve acceptable external and internal amenity and Mr Kennan accepted that this could occur with proper planning.

1. Having regard to the evidence, I am satisfied that the objectives of the DCP controls are met, despite the minimum frontage control not being achieved for the majority of the lots. Whilst there will be considerable excavation of the steeper allotments, it is apparent that the economic use of the land will result in benching of the land at a future time if it is not undertaken at subdivision stage. The experts agree the community title subdivision has the advantage of regulating and monitoring the retaining walls and built form and I am satisfied that the draft community management plan will result in an acceptable urban design outcome if implemented in accordance with that plan.

1. The contention that relates to the density of the development does not concern the lot yield nor the anticipated population density but rather the closeness of dwellings that would result from the lot width that are less than the 18m required by the DCP. I do not consider that the 18m width will guarantee that dwellings are separated from the neighbouring properties. Whilst it was evident that this has occurred to the north of the site where stepped retaining walls were used, there are instances where dwellings have been constructed to within 900mm of the boundary in accordance with the deemed to satisfy provisions of the Building Code of Australia. The council's LEP contemplates a range of housing types and therefore density of built form and the application is consistent with those provisions. I do not consider that the density of the development would be out of character with the locality. Area is available on each allotment for a dwelling footprint of 200sqm and therefore, the style of housing is most likely to be similar to that being constructed in earlier stages of the subdivision and is controlled through the CMS.

1. The resultant built form is not likely to present any differently from that of the existing development when viewed from the New England Highway except for the likelihood that the dominant green fencing that is currently highly visible in Stage 13 may be less obvious once the proposed development is completed. This is because of the orientation of the proposed roads and the likely proximity of built form to the fencing. The landscaping proposed under the CMS will further ameliorate any massing so that the visual impact would be acceptable.

1. Having regard to the objectives of the R1 zone and the planning controls, I am satisfied that the proposed community title subdivision is consistent with those objectives and provides a variety of housing types and densities.

1. Consideration of the council's strategic planning documents and the adopted masterplan indicate that adequate provision is made for pedestrian and cycleways, consistent with those documents. I do not consider that it is necessary to provide for a bus loop within the development for the short period of time until the sites in the south-eastern portion are serviced by a bus route. The number of allotments is small and appropriate linkages are provided.

1. The Masterplan (Exhibit 5) does not provide any road linkages to the sought through Stages 16-18 and accordingly, the additional linkage proposed by Mr Higgins does not accord to the adopted plan and is not required.

1. The engineers' evidence is that, subject to the agreed conditions, appropriate arrangements can be made for the disposal of stormwater drainage, consistent with the objectives and controls contained in the DCP.

1. Mr Seton, for the council, submits that the provisions of clause 7.4 are not met because the applicant has not entered into any arrangement with the council in relation to the provision of water or sewer services. Mr Staunton, for the applicant, submits that these services are available, have sufficient capacity and can be extended into the site. Mr Higgins' evidence is that the provision of these services can be conditioned and this is the usual practice of the council rather than formal agreements are entered into prior to consent being granted. In addition, the provision of the booster pumps and local high-pressure zone will address existing issues on adjoining land.

1. Clause 7.5 of the LEP follows the Standard Instrument (Local Environmental Plans) Order 2006 and the clause prescribed in the Standard Instrument-Principal Local Environmental Plan. This clause relates to the provision of services to the site however is in a different form to that considered by the Court of Appeal in Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399. In that case, the Court was considered a clause that required satisfaction "that prior (emphasis added) adequate arrangements have been made for the provision of sewerage, drainage and water services to the land." The word prior is not included in the LEP clause.

1. For these reasons and having regard to the evidence, I am satisfied that the necessary water and sewerage services are available to the site. The consent will authorise Stages 1A and 1B only and the services are available to the lots to be excised in that subdivision. Through the conditions agreed between the parties, arrangements will be entered into to extend those services to the individual allotments within the community title subdivision, in accordance with the council's standard practice, as part of the development application for Stage 2 works.

1. Because of the extent of changes that arose from the amendments made to the application, agreed conditions were not available at the conclusion of the hearing and were filed on 15 July 2014. Those conditions reflect the agreed positions of the experts.

Conclusion

1. Having found that the proposal is consistent with the objectives of the R1 zone and the relevant provisions of the DCP and that the land is adequately serviced with water and sewerage, there is no reason why consent should not be granted.

1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)    Development Application 98/2013 for the staged subdivision of Lot 1300 in DP 1164893, known as 8911 New England Highway, Muswellbrook is approved subject to the conditions included in Annexure A.

(3)   The exhibits, other than exhibits A, G, K, 1 and 5, can be returned.

__________________

Sue Morris

Commissioner of the Court

ANNEXURE A

Decision last updated: 22 July 2014