Fourth Avenue Developments v Hornsby Shire Council - [2004] NSWLEC 746

Land and Environment Court

of New South Wales

CITATION: Fourth Avenue Developments v Hornsby Shire Council [2004] NSWLEC 746

PARTIES: APPLICANT
Fourth Avenue Developments
RESPONDENT
Hornsby Shire Council

FILE NUMBER(S): 10859 of 2004

CORAM: Hoffman C

KEY ISSUES: Subdivision :- Community title subdivision - endangered threatened species vegetation - high voltage power lines - potential electrolysis and acoustic impacts from railway - drainage detention system - bushfire potential - heritage woodland adjacent

LEGISLATION CITED: Hornsby Shire Local Environmental Plan 1994

CASES CITED:

DATES OF HEARING: 04/11/2004 and 02/12/2004

EX TEMPORE
JUDGMENT DATE : 12/02/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, solicitor
SOLICITORS
McKees Legal Solutions
RESPONDENT
Mr T Pickup, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

2 December 2004

10859 of 2004 Fourth Avenue Developments Pty Ltd v
Hornsby Shire Council
JUDGMENT

1 This was a class one appeal, No. 10859 of 2004, between Fourth Avenue Developments and Hornsby Shire Council. The site is 113-115 Wongala Crescent which are described as Lots 11 and 11A DP10463, Lot E DP364743, Lot G DP381455 and Lot K DP389793, and also No. 9A Boundary Road, Pennant Hills, which is described as Lot B in DP710428. The site has an area of 14,868 sq m, and forms a large internal site bounded by existing allotments with frontages to Boundary Road, Wongala Crescent and Lilla Road.

2 The site has an average gradient of 20% to a creek across the southern part of the site. The site is traversed east west by a high voltage power line along a 30 m wide easement.

3 There is an existing tennis court, stables and rural structures ancillary to the existing dwelling at 113 - 115 Wongala Crescent. The latter buildings are sited on the northern part of the site generally in the location of the proposed allotments and access road.

4 The site is surrounded by low density residential development. It adjoins existing dwellings which front Boundary Road, Lilla Road and Wongala Crescent. The main northern rail line is situated directly opposite the site to its eastern frontage on Wongala Crescent. The commercial and retail centre of Pennant Hills including the railway station and bus interchange is located some 500 m from the site.

5 The subject site is zoned Residential AS (low density, sensitive lands) under Hornsby Shire Local Environmental Plan 1994. The proposed use is defined as subdivision and is permitted with consent within this zone.

6 Clause 7(2) of the LEP requires that the objectives of the zone are to be taken into account before development consent is given to the carrying out of development within that zone. Under cl 14(2) of the LEP there is a minimum lot size of 600 sq m in the Residential AS (low density, sensitive lands) zone.

7 The site is located within the Beecroft Cheltenham Heritage Conservation area as shown in Sch E of the Hornsby LEP. Schedule D of the LEP also lists the bushland beside the railway line on the eastern side of Wongala Crescent as a heritage item of local significance.

8 Under cl 18(5) of the LEP regard must be had to the likely effect of the proposed development on the heritage significance of the heritage item and its setting, or on the heritage significance of the heritage conservation area. When determining an application for consent to carry out development on land in its vicinity this must be assessed. Council’s heritage committee considered the proposed application and resolved to raise no objections to the proposed development on heritage grounds.

9 The proposed development is also subject to the relative requirements of the following Development Control Plans:

10 The site also includes a Blue Gum High Forest identified as an endangered ecological community under Sch 1 of the Threatened Species Conservation Act. The site is bushfire prone land and as such is integrated development. The New South Wales Rural Fire Service has issued a deemed bushfire safety authority in respect of the proposal.

11 The council had refused the development application on the following grounds:

1. Steep gradient
2. Tree removal
3. The possibility of two-storey dwellings on the battleaxe lots
4. Close proximity building envelopes to electricity stanchions
5. Privacy issues
6. Traffic issues
7. Technological hazards

12 The six existing lots were to become 11 lots under community title. Following negotiation, the scheme that was before the Court was 10 lots providing 9 house lots and one community property lot. The latter consisted of land at the entry to the subdivision of Wongala Crescent, the internal road and bushland down slope of the proposed house lots.

13 The land at the entry was complicated by the presence of a high voltage transmission tower. As a result the entry land was about two normal house lots wide and was to be landscaped. The 132,000 volt power lines were very high overhead and ran above the proposed access road of the subdivision, such that any future houses would be a minimum of 30 m from the conductors.

14 The access road dead-ended in the land and the house lots were off each side of it. The land sloped down to a creek and the access road was about three-quarters of the width of the land up from the creek. At the end of the access road and below the lots on the low side was Blue Gum High Forest, the protected species and remnant ecological community.

15 At the hearing the parties came with consent orders saying that the development protected the forest. A report in Exhibit A of the magnetic field intensity level of the power transmission lines showed that the maximum exposure on the site was 28 milligauss. The Australian Standard for residential occupation was 1,000 milligauss. Thus the site was declared safe for houses and human habitation.

16 During the hearing the Court noted the stormwater collection system intended to distribute water via swales in the Blue Gum High Forest and thus maintain the groundwater volume and runoff to the forest. These swales required excavation up to 8 m wide and half a metre deep to form a trough with earth embankments on the side of the hill.

17 The engineering requirement appeared to be in conflict with preservation of the forest since the four rows of swales would cut through the roots of the trees or cover them with earth embankments across the whole width of the Blue Gum High Forest.

18 Also the engineering condition required hard engineering solutions for the creek to carry runoff when the forestry requirement was for soft engineering, and removal of weeds and revegetation with native plants. Also a letter from the Department of Infrastructure, Planning and Natural Resources required the soft engineering options and revegetation to be carried out. The DIPNR letter also indicated that it did not regard the creek as a river and therefore a permit under s 3A was not required for this particular property.

19 Objectors were notified of the hearing but none chose to attend. Their concerns were mainly about privacy from future dwellings and traffic in the street. The forest preservation was important in creating a buffer to most existing houses. The council engineers said that Wongala Crescent itself was a dead end street and although there was some concern about sight distances at the point of the entry to the site. Due to the low traffic volumes the council engineers were satisfied that the objectors’ concerns in that regard did not have sufficient weight to justify refusal.

20 The on-site inspection by the Court confirmed that the engineering and the forestry conditions were in conflict. The parties sought an adjournment and the Court directed that the proposal and draft conditions and consent orders be reviewed. The Court noted some 30 or so conditions that needed to be reviewed including the terms of the proposed bush management plan that had wide terms of reference that should be the subject of deferred commencement so that the council could approve the final management plan.

21 The council’s solicitor advised the objectors of the adjournment, but only one had contacted him and the concern was about privacy. That was discussed and apparently the person was satisfied.

22 At the next mention at the Court, the parties advised that they had negotiated and reviewed the proposal and again had reached consent orders. The stormwater drainage was to be done via detention tanks, one under the access road at its far end and the other in a natural clearing of the trees in the Blue Gum High Forest below Lot 5. After detention the stormwater would be distributed via agricultural drains that could be installed in narrow trenches that would not disturb the trees.

23 The many conditions of the original consent orders had been reviewed and changed. The parties asked the Court to convert the mention to a hearing as there was no more evidence to give apart from the revised drainage plan in Exhibit D and the new consent orders in Exhibit 6.

24 The parties had previously tendered advices from the Rural Fire Service whose requirements for bushfire safety could be incorporated into the design of houses when applications were made and into the bush management plan to be prepared.

25 State Rail had also advised conditions because the Great Northern Railway was on the opposite side of Wongala Crescent and acoustic insulation would be required in any new houses. Precautions were also to be taken against stray currents and electrolysis risk.

26 The revised consent orders and conditions appeared to take account of all the necessary matters.

27 In regard to the Bush Management Plan, the Court was shown new performance based conditions that could be certified by a qualified ecologist and bushland management consultant, and as a result the need for deferred commencement consent was obviated.

28 Overall the Court has concluded there is nothing sufficient for refusal of the proposal. There is a concern that two of the subject drawings, Nos. 2237SED1 and SER1, retain swales through the bushland mainly because the drawings have not been updated, and still refer to the temporary swales to be constructed in the Blue Gum High Forest during construction as well as the final swales intended in the original application.

29 In view of the importance of the forest for its own sake and as a buffer to nearby residents, the retention of those drawings creates potential confusion for any private certifier or building contractor. The plans must be updated before formal orders can issue.

30 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Once satisfactory revisions of Exhibit A plan Nos. 2237SED1 and 2237SER1 are filed with the Court, and a letter of satisfaction on their being amended to delete all references to swales in the Blue Gum High Forest is received at Court from Hornsby Shire Council, then Consent Orders will be issued as in Order 3 below.

3. Development Application No.1584/03 for the subdivision of 6 lots into 10 community title lots at 113-115 Wongala Crescent and 9A Boundary Road, Pennant Hills is determined by the granting of consent subject to the conditions and drawings set out in Annexure A as annotated in Exhibit 6 of this appeal.

4. The updated drawings referred to in Order 2 above and any letter of satisfaction from Hornsby Shire Council shall be filed at Court within 30 calendar days hereof.

5. The exhibits are returned to the parties except Exhibits 1, 6, A, B, C, and D.

K G Hoffman

Commissioner of the Court

rjs

Annexure “A”

Fourth Avenue Developments v Hornsby Shire Council

Conditions of Development Consent

Development Application No. 1584/03 for the subdivision of six (6) lots into ten (10) community lots is determined by the granting of consent generally in accordance with the plans identified in Schedule A at the end of Annexure A and subject to the following conditions:

1. The landscape plan is to be amended for the additional community lot area (former proposed lot 11) to be used for the recreation of residents of the subdivision.

2. The pedestrian accessway linking Boundary Road is to be maintained to facilitate surveillance and sightlines for safety and security of pedestrians.

3. The boundaries of the site along the northern boundary, the pedestrian accessway to Boundary Road, the neighbourhood property at the Wongala Crescent frontage and the eastern boundary of proposed lot 2, shall be enclosed with 1.8m fences/screens/walls to protect the privacy of future occupants as well as adjoining owners. Provided that where an adjoining owner agrees to the provision of an alternate fence/screen/wall that fence/screen/wall shall be erected in lieu of the fence required by this condition. The fence/screen/wall is to be erected prior to the issue of a Subdivision Certificate.

4. Landscaping is to be carried out generally in accordance with the landscape plan prepared by Jocelyn Ramsay & Assoc Pty Ltd being Dwg. No. 04011/1 Issue A and Drwg. No. 04011/2 Issue A; subject to condition No. 1.

ENVIRONMENTAL HEALTH & BUILDING

Demolition

5. All demolition work is to be carried out in accordance with the applicable provisions of Australian Standard 2601-2001 ‘The Demolition of Structures’.

Note : Applicants are reminded that WorkCover NSW requires all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications.

Dust Control

6. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works.

Hours of Demolition Works

7. In order to maintain the amenity of adjoining properties, demolition works shall be restricted to between 7.00 am and 6.00 pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless Council gives written consent.

Asbestos Removal

8. Prior to commencement of any work involving the demolition, alteration or addition to any building on the development site, a survey is to be conducted by a competent person to ascertain whether any asbestos materials exist thereon. Asbestos material means any material that contains asbestos.

9. Where asbestos material is found to exist on the development site and that asbestos material is to be removed or disturbed as a result of any proposed demolition, alteration or addition, then all work involving removal and disposal of asbestos material must be undertaken by persons who hold the appropriate licence issued by WorkCover NSW under Chapter 10 of the Occupational Health and Safety Regulation 2001.

10. The collection, storage, transportation or disposal of any type of asbestos waste is to comply with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996.

11. Upon completion of disposal operations, the applicant must lodge with the principal certifying authority, within seven (7) days, all receipts (or certified photocopies) issued by the receiving landfill site as evidence of proper disposal.

Note : The person responsible for disposing of the asbestos material shall consult with the Environment Protection Authority to determine the location of an approved landfill site to receive asbestos material.

Signs for Demolition Sites

12. On construction sites where buildings contain asbestos material, a standard commercially manufactured sign containing the words ‘DANGER ASBESTOS REMOVAL IN PROGRESS’ measuring not less than 400mm x 300mm is to be erected on the site in a prominent position visible from the street. The sign is to be erected prior to any work commencing and is to remain in place until such time as all asbestos material has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001.

13. A sign must be erected in a prominent position on the premises, on which the demolition of a building is being carried out, stating that unauthorised entry to the premises is prohibited and showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted during and outside work hours. The sign is to be removed when the demolition of the building has been completed.

Inspections

14. The demolition works must be inspected by the Principal Certifying Authority to certify that the works comply with the development consent and the approved plans and specifications.

Sediment & Erosion Control

15. Deleted

ENGINEERING

Construction Certificate – Subdivision/Engineering Works

16. A construction certificate for “Engineering Works” must be obtained from either Council or an Accredited Certifier. Engineering design plans and specifications are to be prepared by a chartered professional engineer for any proposed works. The plans and specifications are to be in accordance with development consent conditions, appropriate Australian standards, and applicable Council standards, in particular “Hornsby Shire Council Civil Works - Design and Construction Specification”. Information required to be submitted with a construction certificate is as follows:

(a) copies of compliance certificates relied upon

(b) Four (4) copies of the detailed engineering plans in accordance with Hornsby Shire Council's Civil Works - Design Specification 1999. The detailed plans may include but are not limited to the earthworks, roadworks, road pavements, road furnishings, stormwater drainage, landscaping and erosion control works.

Principal Certifying Authority

17. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.

On the date of this consent, Council is the only principal certifying authority for subdivision work. Council requires that the applicant enter into a deed of agreement identifying each party’s responsibilities prior to the commencement of subdivision work.

Notifying Council of Commencement of Works

18. It is a requirement of the Environmental Planning and Assessment Act (Section 81A(2)(c)) that you notify Hornsby Council at least two (2) days prior to the intention to commence works.

Where works are to be undertaken in a public place, such notice must be accompanied by evidence of the contractor's Public Liability and Workers’ Compensation Insurances. The public risk policy shall be such an amount as determined by Council (not being less than $10,000,000.00) and shall cover the owner and the Council against any injury, loss or damage sustained by any person, firm or company.

Hours of Construction

19. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Site works may extend to 4.00 pm on Saturdays if inaudible on residential properties. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.

Long Service Levy

20. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued.

Inspections - Engineering

21. All engineering work required by this consent must be inspected and compliance certificates shall be issued prior to occupancy or issue of the subdivision certificate, whichever occurs first, certifying that the works comply with the development consent, construction certificate and Hornsby Shire Council Civil Works - Design and Construction Specification for the following nominated stages:

Roadworks

22. Road pavements are to be designed by a chartered professional civil engineer in accordance with Hornsby Shire Council’s Civil Works Design and Construction Specification 1999.

31 Access Way/Driveway

23. A separate application under the Local Government Act 1993 and Roads Act 1993 shall be submitted to Council for approval for the following:

24. The internal driveway and parking areas are to be designed and constructed in accordance with Australian Standard 2890.1.

25. Works to be undertaken within, or connecting to, public infrastructure, are to be designed and constructed in accordance with Hornsby Shire Council’s Civil Works - Design and Construction Specification 1999. Details are to be submitted with the application for a construction certificate to Hornsby Shire Council for approval.

26. Redundant gutter and/or footway crossing must be replaced with integral kerb and gutter. The footway area must be restored by turfing.

27. The cost of repairing any damage caused to Council's assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be paid for by the applicant/developer prior to occupation or issue of a subdivision certificate, whichever occurs first.

Drainage

28. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall:-

(a) Be in accordance with Hornsby Shire Council Civil Works – Design Specification 1999.

(b) Provide for drainage discharge to the existing drainage system.
(c) Ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.

Retaining Walls

29. Should any masonry fence greater than 600mm in height be proposed to be erected as part of the development, the Construction Certificate shall address the manner of its construction.

30. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, together with associated stormwater drainage measures, are to be designed and constructed by a chartered professional civil engineer or other appropriately qualified person. Certifications are to be included with plans and specifications to accompany any construction certificate.

a) ENGINEERING WORKS

31. A 1.2m wide concrete footpath from the community road to Boundary Road shall be designed and constructed to service the subdivision in accordance with Hornsby Shire Council Civil Works Design and Construction Specification 1999. Bollards shall be placed at Boundary Road and adjacent to the community road.

32. Construction of a piped interallotment stormwater drainage system to service the proposed subdivision. The pipeline and collection system shall be designed to accommodate the storm water flows generated by the subdivision and discharged into the drainage system within the subject site. All drainage pits shall have mesh screen installed to the outlet pipe prior to discharge into the detention/infiltration drainage system.

33. Construction of detention basin/infiltration system to the following requirements:

33.1 In order to prevent the existing watercourse from erosion/scouring due to increase in runoff it is necessary to construct an on site detention system. The detention basin is to have a storage capacity to contain the site generated 100 year ARI post development runoff and a maximum discharge equivalent to the 5 year ARI pre-development flow rate. The detention basin shall be landscaped, fenced and warning sign installed if ponding depths exceed 250mm.

33.2 Security fencing and warning sign are to be provided. The design is to include adequate access for the continued maintenance of the detention / infiltration facility.
33.3 Construction of an infiltration system, generally in accordance with plan prepared by Mepstead & Associates Drwg No. 22370SD1, issue B updated to 9 November 2004. Detail design plan shall be approved with the construction certificate.

34. Rehabilitation of the existing watercourse to the following requirements:

34.1 deleted
34.2 deleted
34.3 deleted

34.4 deleted

35. Construction of the road shoulder across the full frontage of Wongala Crescent together with drainage, kerb and gutter, any damaged concrete footpath paving. The remaining footway area shall be turfed so as to be free draining to the street.

36. All public utility service adjustment necessary within the public road shall be borne by the applicant.

37. Construction of the proposed paved accessway within the community lot to the following specifications and requirements:

37.1 Construction of 150mm thick reinforced concrete pavement with a 150mm sub base with DGB 20.

37.2 The pavement width shall be a minimum of 5.0 metres to the turning area.

37.3 The pavement shall have a kerb to one side and a one-way cross fall with a minimum gradient of 2%. The compaction of the subgrade shall be to minimum 95% of the maximum density obtainable using Test E1.1 for the material passing AS sieve in Australian Standards AS 1289-1977.
37.4 Construction of a turning area at the end of the community road suitable for Council Garbage truck movement for a 23 tonne as per the Residential Subdivision Dwelling House DCP.

38. Construction of a vehicular crossing layback for the community road.

39. Revegetation must be applied to disturbed areas as soon as practical after completion of earthworks and must be established.

40 Suitable provision is to be made for the supply of all relevant services to allotments.

41. Provision of street lighting for the community road in accordance with Australian Street lighting standard.

42. A Traffic Control Plan (TCP), prepared by a qualified work site traffic controller, is to be submitted with any construction certificate, demonstrating compliance with the Road & Traffic Authority’s Traffic Control At Worksites Manual, 1998, and detailing:-

(a) Public notification of proposed works.
(b) Long term signage arrangement.
(c) Short term (during actual works) signage.
(d) Vehicle Movement Plans, where applicable.
(e) Traffic Management Plans.
(f) Pedestrian and cyclist access/safety.

Subdivision Certificate

43. Lodgement and approval of a subdivision certificate is required to authorise the Plan of Subdivision.

44. The Subdivision is to be implemented under Community Title Legislation. The accessway, vehicular turning area, Stormwater treatment device and the On Site Detention Basins are to be maintained by the Community Association.

45. Submission to Council of three proposed names for the community access road within the subdivision, together with the origin of such names, wither historical or otherwise, to assist Council in the determination on the new accessway names.

46. Each of the proposed lots serviced by the proposed interallotment drainage easement shall have this burden and benefit created pursuant to Section 88B of the Conveyancing Act 1919.

47. Construction of a common letter box to service the development or creation of easement rights over the community accessway for Australia Post in accordance with the requirements of the Authority.

48. All Section 88B restrictions and covenants created as part of this consent are to contain a provision that they cannot be extinguished or altered except with the consent of Hornsby Shire Council.

49. The following documentary evidence is to be obtained and forwarded to the Principal Certifying Authority prior to the release of the subdivision certificate:-

a A Section 73 compliance certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. For details see Customer Service, Urban Development, at the Sydney Water website or telephone 13 2092.

Following application, a “Notice of Requirements” will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

The Section 73 certificate must be submitted to the Principal Certifying Authority prior to the release of the linen plan/occupation of the development.

b. The submission of a Surveyor's Certificate stating that no services, drainage lines or accessway encroach over the proposed boundary other than as provided for by easements created by the final plan of subdivision.

c. Geotechnical certification of all retaining walls, excavations, road works, embankment and stabilization works.

d. A final clearance is to be obtained from both Energy Australia and Telstra for satisfactory provision of services to the proposed lots.

e. Submission of certification from an appropriately qualified Worksite Traffic Controller that the documentation requirements of Section 6 of the Traffic Control at Work Sites Manual 1998 (RTA), have been complied with. Where necessary council may require a copy of all documentation to be submitted to council for audit purposes prior to the issue of a subdivision certificate. Council may also audit this documentation at any time during the development works.

f. Certification from a Chartered Professional Engineer/ Registered Surveyor stating that all drainage including the on site detention basins (OSD) has been constructed in accordance with the design plan. Calculations are to be submitted indicating that the storage and permissible site discharge for the constructed OSD basins have been achieved.
g. Certification for the installation of Stormwater treatment device in accordance with the required specification.

Covenants & Restrictions on Title

50. A positive covenant shall include the maintenance of the On site detention systems on a regular basis to ensure that the system functions effectively. A standard wording for the terms of the Positive Covenant is available from Council.

51. The management statement shall detail the maintenance schedule for the long term maintenance of the Stormwater treatment device.

52. The creation of a ‘Restriction as to User’ for the on site detentions systems to ensure that the system is not altered in its shape, size and its functions. A standard wording for the terms of the ‘Restriction as to User’ is available from Council.

53. An Easement to Drain Water over the proposed Council drainage pipe systems, watercourse and the 100 year overland stormwater flow path, at the applicant’s cost, on the Final Plan of Subdivision. The easement must be created in accordance with “drainage easement” under the terms set out in Memorandum S724494 filed with Land and Property Information New South Wales (formerly the Land Titles Office).

54. The creation of a "restriction on the use of land" under Section 88B of the Conveyancing Act 1919 on that area affected by the 1 in 100 year stormwater overland runoff to prohibit the alteration of the final floodway shape and to prohibit the erection of a structure (including fencing) in the floodway without the written permission of Hornsby Shire Council. This restriction is to be registered with Land and Property Information New South Wales (formerly the Land Titles Office) prior to occupation or with the Final Plan of Subdivision, whichever occurs first.

55. The creation of a "Restriction on the Use of Land" under the Conveyancing Act 1919 on the Final Plan of Subdivision for lots 2 to 6 adjacent to the floodway, to ensure that the floor level of any habitable room is not less than 0.5m above the 100 year average recurrence interval storm level. Such level shall be detailed on the Section 88B Instrument and related to Australian Height Datum.

56. The creation of a restriction on all filled lots to ensure that foundations of any structures to be erected on all fill such lots are designed by a Structural Engineer.

57. All fees payable to Council as part of any construction, compliance or subdivision certificate or inspection associated with the development (including the registration of privately issued certificates) are to be paid in full, prior to the issue of the Subdivision certificate. Any additional Council inspections beyond the scope of any compliance certificate needed to verify full compliance with the terms of this consent will be charged at the individual inspection rate nominated in Council's Fees and Charges Schedule.

Note: Any additional Council inspections beyond the scope of any Compliance Certificate needed to verify full compliance with the terms of this consent will be charged at the individual inspection rate nominated in Council's Fees and Charges Schedule.

Works as Executed

58. A works-as-executed plan for the “Engineering Works”, prepared by a registered surveyor, must be lodged with Hornsby Shire Council when the engineering works are complete, prior to the release of the subdivision certificate.

59. All “Engineering Works” required by this consent must be inspected at the nominated hold points and compliance certificates shall be issued prior to issue of the subdivision certificate, certifying that the works comply with development consent, construction certificate and Hornsby Shire Council Civil Works - Design and Construction Specification 1999.

PARKS & LANDSCAPES

60. The removal of tree/s numbered 15, 20, 21, 36, 52, 61, 65, 88, 91, 93-95, 102, 113, 123, 125, 174 and 177 (marked on the plan) or excavation or filling of soil or the placing of building materials or associated works (i.e. water, sewer, telephone, drainage) within 4 metre setback is forbidden unless written approval by Council.

a. Trees numbered 15, 20, 21, 36, 52, 61, 65, 88, 91, 93-95, 102, 113, 123, 125, 174 and 177 to be retained shall be protected during site works by the construction and erection of solid barricades i.e. 1.8 metre cyclone chainmesh fence OR picket or plywood hoarding fences to 1.2 metres and strained and posted at 2 metre intervals at the previously nominated distance, from the trunk/s of such trees.
b. All tree protection measures so approved and installed, shall be maintained in good working order and repair throughout the course of building or development works.

61. All existing trees shall be retained in accordance with Hornsby Shire Council’s Tree Preservation Order, except where Council’s prior written consent has been obtained, or where after approval of the relevant Engineering Plans, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicle access roads and parking areas.

62. The developer/contractor will prevent damage to trees and tree root systems during site works and construction activities including the provision of water, sewerage and stormwater drainage services. In particular, works, erection of structures, excavation or changes to soil levels within 4 metres of the trunks of trees to be retained are not permitted unless part of the development as approved, and the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within 4 metres of the trunk of a tree to be retained, is not permitted.

63. All environmental weeds, noxious and invasive plants such as Privet are to be removed and continually suppressed using an appropriate method prior to release of the final plan.

64. The driveway is to be laid on existing grade with no excavation or fill within the nominated restriction zone, OR pier and beam construction of the driveway or road within the nominated restriction zone shall be used with piers being located no closer than 3 metres to the trunks of the trees. The driveway edge being located no closer than 1 metre to the edge of the trunk. The excavation for the piers within the nominated restriction zone must be hand dug with no root greater than 70mm severed. A qualified and experienced arborist is to be on site overseeing the work to ensure that the roots are cut cleanly and that the works will not adversely affect the longevity of the tree.

WATER CATCHMENTS

Soil and Water Management Plan

65. The applicant shall protect overland flow paths, drains adjoining land and downstream water quality from sedimentation. Accordingly, the following sediment control measures shall be provided in conjunction with the Soil and Water Management Plan.

65.1 The S&WMP shall clearly show the nature and extent of clearing, excavation and filling within the site.

65.2 All runoff and erosion controls are to be installed before any works are carried out at the site.

65.3 All contaminated surface waters and debris from the site shall be screened and captured within the site.

65.4 Stormwater kerb inlets and drains receiving stormwater shall be protected at all times during the development.

65.5 Diversion of upslope clean surface runoff (via diversion drains and sediment fencing) around the disturbed areas.

65.6 Sediment fencing shall be secured by post (where metal star pickets are used plastic safety caps shall be used) at two -metre intervals with the geotextile fabric embedded at 200 mm in soil. One metre returns shall be installed at twenty-metre centres along the sediment fencing.

65.7 Topsoil stockpiling stripped from the construction site shall be diverted away from drainage lines, stormwater inlets and be suitably covered by impervious membrane material and screened by sediment fencing.

65.8 Kerb inlet sediment traps shall be installed downslope of Wongala Cr to facilitate the capture of sediment.

65.9 Street sweeping shall be undertaken (as required) along Wongala Cr during the excavation until the site is fully established/stabilised.

65.10 Turfed nature strip areas adjacent to Wongala Cr shall remain undisturbed.

65.11 Erosion and sediment control measures shall be maintained in good working order, repaired or replaced throughout the course of the development.

65.12 Sediment and erosion controls shall be inspected weekly or after each storm event for litter, sediment, and organic waste accumulation. All sediment/debris shall be removed within two (2) working days.
65.13 Disturbed areas shall be rehabilitated and landscaped with preferably indigenous plant species or other suitable approved stabilising processes within fifteen days after the completion of works.

Stormwater Flow Dissipation

66. All headwall outlets shall incorporate flow velocities reduction controls (i.e. bedded boulders and small stones) minimising erosive and scouring impacts. Accordingly, energy dissipator controls shall be landscaped to accommodate outlet sheet flow. No engineering works are permitted within the bed of the watercourse.

Grass Swales

67. Deleted.

Post Development Stormwater Treatment Control

68. The proponent is required to provide a permanent stormwater treatment device/s designed to screen and capture gross stormwater pollutants that will be generated during the post development phase. Accordingly, engineering cross-sectional plans and maintenance/management details to be provided. The design criteria shall include the following;

68.1 Performance capture criteria in excess of 90% of gross stormwater pollutants (e.g. litter, floatable, organic debris, coarse/fine sediments, suspended solids, oils and road grit) during a 1 year ARI storm event.

68.2 Stormwater pollutants captured shall not be resuspended.

68.3 The device shall be non-blocking and not cause impact on drainage infrastructure.

68.4 The device shall have access for inspection and maintenance and adequately accessible by a vehicle for cleaning, dewatering and removal of captured pollutants.
68.5 The device shall be non accessible to the general public and aesthetically non intrusive.

Watercourse - Riparian Zone (Buffer)

69. The proponent shall maintain a ten metre riparian set back from the crest of the watercourse. Accordingly, no land disturbance or buildings structures shall encroach within ten metres of either side of the watercourse. The riparian buffer shall remain an undisturbed zone or may be vegetated with a compliment of remnant riparian plants. Riparian vegetation should range from large to small trees to small shrubs and rushes receptive to wet or damp environments that will provide further means of bank stabilisation and infiltration of surface runoff. Accordingly, no land disturbance, building structures shall encroach within ten metres from the crest (bank) of the watercourse.

BUSHLAND & BIODIVERSITY

Prior to issue of Construction Certificate

70. In order to conserve native flora and fauna habitat a Restriction-As-To-User shall be placed on the area of Lot 1 on which the Blue Gum Forest is located, such that no development, including building structures and no clearing of native vegetation is to occur. The Blue Gum Forest is to be depicted as the area within Lot 1 which is located south of Lots 3, 4, 5, 6 and 7 and extending to the boundaries of the site (“the Blue Gum High Forest”).

71. The preparation of a detailed Bushland Management and Restoration Plan for the Blue Gum High Forest located on Lot 1 by a recognised and experienced Bushland Management and Restoration Company. The Plan shall form part of the Community Management Plan and include the following:

a) Schedule of restoration works to be undertaken by qualified and experienced bush regenerator(s) including primary, secondary and maintenance weeding using approved bush regeneration techniques. Primary weeding to commence prior to or at the start of the initial on-site works.

b) On-going maintenance weeding to be undertaken by qualified and experienced bush regenerator(s) post construction works at minimum intervals of 3 months between visits where the Blue Gum High Forest is to be maintained in a mostly weed free condition (less than 10% weed cover).

c) The collection and propagation of native seeds from the site including tree, shrub and grasses/groundcover species prior to and during construction works by a licensed seed collector.

d) Revegetation works where required, at planting densities of a minimum of four (4) plants per square metre, using a diversity of locally indigenous tree shrub and groundcover species (to include a species list that is consistent with the NSW Scientific Committee Final Determination for Blue Gum Forest) that have been grown from locally collected seed. In addition, new plantings are to be regularly watered and tree guards are to be placed around new plants.

e) Erection of appropriate fencing around the Blue Gum Forest prior to construction works.

f) Where clearing is permitted for approved works (i.e. stormwater controls) the top soil is to be stockpiled and redistributed over the affected areas.

g) Mulching, jute matting and brush matting, where required.

h) Rubbish removal.

i) Monitoring of restoration works and reporting progress to council on completion of on-site construction works and at one year intervals post construction for a period of two years.

j) Include a detailed map of the Blue Gum High Forest.

The Plan shall be reviewed and approved by a qualified Ecologist/Bushland Management Consultant, or Council prior to the commencement of works and be commenced as above, and as further stipulated in the Plan.

72. Deleted.

Prior to the commencement of the development.

73. Prior to any construction works, a temporary barrier fence (i.e. star picket and wire fence or high visibility barrier fence) shall be installed along the edge of the “Restricted Development Area” being Lot 1 (“Neighbourhood Property”). The fence is to protect the Blue Gum High Forest remnant from damage by equipment or by stockpiling of materials during on-site construction works. The fencing is to be inspected by Council staff from the Bushland and Biodiversity Management Team (Tel. 9847 6542) for approval prior to works commencing. Council must receive 48 hours notice prior to the inspection of the protective fence.

74. Prior to the removal of hollow bearing trees and existing building structures the following actions are to be undertaken to prevent injury to native wildlife.

a) The Applicant shall provide replacement habitat for those animals displaced as a result of the felling of the tree or removal of the structure, by the erection of nesting boxes on other retained trees within the subject site, at a comparable height and orientation, including three possum boxes. Information on animal boxes can be gained from WIRES (Wildlife Rescue) on (02) 8977 3333.

b) Prior to tree removal, the Applicant is to arrange with WIRES (Wildlife Rescue) or another Wildlife Carers organisation to be present on site to assist in the event of fauna injury. WIRES volunteers can be contacted on (02) 8977 3333 or Wildlife Services Sydney Metropolitan volunteers can be contacted on (02) 9413 4300.

General Conditions

75. Deleted.

76. The Blue Gum High Forest shall be managed in accordance with the approved Bushland Management and Restoration Plan. All landscaping shall be composed of locally indigenous species as detailed in the approved Bushland Management and Restoration Plan.

77. All native vegetation including trees, shrubs and groundcovers, are to remain undisturbed except only where affected by necessary works detailed on approved plans, or with Council’s written consent. All construction works and landform modification are to be restricted to the development area as shown on the approved site plans.

78. Demolition of the existing building structures (i.e. sheds, stables, etc.) are to be undertaken in stages to prevent injury to native wildlife where the first stage shall include the removal of the roof to expose any wildlife and to encourage their relocation elsewhere.

79. Deleted.

80. All environmental weeds, noxious and invasive plants including Lantana, Small leaf Privet, Large Leaf Privet, Ochna, Wandering Jew, Asparagus Fern, Madiera Vine, Bridal Creeper, Camphor Laurel, Montpellier Broom, Impatiens, Honeysuckle, Cotoneaster and Crofton Weed, are to be removed and continually suppressed using appropriate bush regeneration methods prior to release of the final plan.

81. Deleted.

TRAFFIC & ROAD SAFETY

82. Access design is to be in accordance with AS 2890.1 – 1993.

RAIL ESTATE

83. The applicant is to procure a report on the Electrolysis Risk to the development from stray currents, and the measures that will be taken to control the risk. The applicant is advised to consult an Electrolysis expert. The expert’s report must be submitted to Rail Estate for review by the Senior Electrolysis Engineer or nominated Electrolysis Section personnel.

84. A restriction on title shall be placed on lots 2, 3, 4, 5, 6 & 7 for dwelling construction in accordance with AS3959 Construction of buildings in bush-fire prone area Level 1 construction.

85. A 15 metre asset protection zone shall be maintained around lots 2 and 7.

86. The accessway is to comply with the access requirements of the NSW Rural Fire Service as detailed in Planning for Bushfire Protection 2001 Section 4.3.

Contribution Plan

87. The payment of a contribution towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, stormwater drainage, bushfire protection and Section 94 administration in accordance with Sections 94, 94B and 94C of the Environmental Planning and Assessment Act, 1979, and Hornsby Shire Council’s Development Contributions Plan 2004-2010. The total contribution shall be $83,527.85 if paid prior to 30 June 2005. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years, it being noted that there are:-

A discount has been applied for two existing lots Lot K DP 389793 and Lot E DP 364743.

This amount is to be paid to Council prior to issue of the construction certificate or the subdivision certificate, whichever occurs first . The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to 30 June 2004.

Note : A copy of Council’s Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council’s Administration Building located at No. 296 Pacific Highway, Hornsby.
Schedule A

1. Plans drawn by Mepstead and Associates Pty Ltd being as follows:

a. Drawing No. 2237TREES, Annexure A, Tree and Contour Information and dated 3 July, 2003.

b. Drawing No. 2237SUB1, Annexure B issue 1 updated to 12 July 2004, Plan of Proposed Subdivision (Showing the extent of toe of batter, location of retaining wall and drainage calculations).

c. Drawing No. 2237SED1, Annexure C, Sediment and Erosion Control Plan and updated to 8 December 2004.

d. Drawing No. 2237SUB1RD, Annexure D, Plan of Possible Road Design and dated 28 July, 2003.

2. Landscape Plans prepared by Jocelyn Ramsay and Associates Pty Ltd being drawing No. 04011/1, issue A and 04011/2 issue A and dated 9 March, 2003.

3. Typical log retaining wall details prepared by Michael Ell dated 10 September, 2004.

NOTE: All reference to grass swale detention systems within the Blue Gum High Forest either temporary or permanent have been deleted from the proposal and as far as known from the documents. Any reference to the swales remaining in documents related to the proposal must also be deleted and if necessary an application for amendment to an alternative made to the council.

________________
K G Hoffman
Commissioner of the Court
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CITATION:	Fourth Avenue Developments v Hornsby Shire Council [2004] NSWLEC 746
PARTIES:	APPLICANT Fourth Avenue Developments RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10859 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Subdivision :- Community title subdivision - endangered threatened species vegetation - high voltage power lines - potential electrolysis and acoustic impacts from railway - drainage detention system - bushfire potential - heritage woodland adjacent
LEGISLATION CITED:	Hornsby Shire Local Environmental Plan 1994
CASES CITED:
DATES OF HEARING:	04/11/2004 and 02/12/2004
EX TEMPORE JUDGMENT DATE :	12/02/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough