Haysom and Spender Architects v Byron Shire Council - [2000] NSWLEC 274

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Haysom & Spender Architects v Byron Shire Council [2000] NSWLEC 274

PARTIES:
APPLICANT
Haysom & Spender Architects
RESPONDENT
Byron Shire Council

FILE NUMBER(S): 10114 of 2000

CORAM: Cowdroy J

KEY ISSUES: Development Consent :- application for tourist facility - environmentally sensitive area - council initially opposing development - thereafter council consent to development subject to conditions - objectors’ submissions - consent granted with conditions

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C(1)

CASES CITED:

DATES OF HEARING: 14/11/00, 15/11/00, 16/11/00, 23/11/00, 28/11/00, 30/11/00, 7/12/00, 18/12/00

DATE OF JUDGMENT:
12/20/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Webster (Barrister)
SOLICITORS
Halliday & Stainlay
RESPONDENT
Mr T Robertson (Barrister)
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10114 of 2000
CORAM: Cowdroy J
DECISION DATE: 20/12/00

Haysom & Spender Architects

Applicant

v

Byron Shire Council

Respondent

JUDGMENT

1. By application class one filed 14 February 2000 Haysom & Spender Architects (“the applicant”) appealed against the deemed refusal by Byron Shire Council (“the council”) of development application 99/0898. As a result of discussions held between the parties the applicant has substantially modified development application 99/0898 (“the development application”) and in consequence thereof the council does not oppose the Court upholding the appeal subject to conditions.

2. Initially the proposed development consisted of a tourist facility (“the facility”) to be developed on land known as 77-97 Broken Head Road, Suffolk Park (“the site”). The proposed facility consists of 136 units in 12 accommodation buildings, conference centre, reception area, restaurant and bar, souvenir shop, administration facility, pool, games room, parking, landscaping and on-site waste water management. A development application had initially been lodged with council for the facility on 1 December 1999.

3. The site area amounts to 17.18 hectares. Such site is zoned partly 2(t) Tourist Area zone, 7(a) Wetlands zone, and 7(b) Coastal Habitat zone pursuant to the provisions of the Byron Local Environmental Plan 1988 (“the LEP”). The site already contains a dwelling house and has approval for three tourist cabins containing 12 units and a manager’s residence pursuant to development consent D96/0387.

4. The site has been the subject of litigation in this Court: see Byron Bay Everglades Resort Pty Limited v Byron Shire Council & Anor [2000] NSWLEC 81, unreported. The site had been used as a picnic ground and for weddings and receptions since approximately 1970. The site has been the subject of two major environmental planning investigations. In 1989 Planners North prepared a report supporting the proposed rezoning of part of the site from 1(d) Investigation to 2(t) Tourist Area. Such zoning recommendation resulted in the existing consent for the small scale tourist facility. In 1994 an application to develop aged housing facilities on the site was made to council.

5. The site is located within one kilometre of the coast and has been the subject of detailed investigations in relation to flora and fauna habitat, acid sulphate soils, wetlands, hydrology, flooding, buffer zones and other issues.

6. The site is described as low and flat. The lower central and eastern portions of the site are covered with dense vegetation. Tallow Creek (“the Creek”) bisects a portion of the site at the southern extremity and flows north east into a lagoon behind Tallow Beach. The areas on either side of the Creek contain numerous vegetation communities such as littoral rainforests (in the central west), swamp scleropyll forest (adjacent to the littoral rainforest and to the east to the Creek); woodland in the south west corner; grassland beside the Everglades canal and sedgeland in the central north, west of the Creek. The site also contains coastal wetland which is protected pursuant to State Environmental Planning Policy No 14. Much of the vegetation on the site is protected by the environmental protection zones as identified by the LEP.

7. Since the institution of the appeal the applicant has agreed to substantially reduce the number of units in the facility from the proposed 136 units to 92 units. As a consequence there will be no building on the eastern side of the Creek and a re-configuration of the other buildings on the site. The plans for the development application have further been amended in consequence of certain observations made by the Court as a result of the view which was held on the site on 28 November 2000. Such observations were concerned inter alia with the impact of noise from the proposed restaurant on Mr & Mrs Jurd’s land at 99 Broken Head Road.

8. The Court is satisfied that there has been close consultation between the experts retained by the applicant and by the council on all matters pertaining to environmental issues, including the protection of flora and fauna, sanitary disposal, impact of noise and impact on visual amenity.

9. Written submissions from numerous objectors and from the Suffolk Park Progress Association were tendered in evidence. In addition the Court initially heard evidence by videolink on 23 November 2000 from Mr Terrence Digwood on behalf of the Suffolk Park Progress Association, from Ms Ursula Wynd, Mr Glen John Hannan, Ms C Leutfer, Ms Vivienne Truscott and Mr Lawrence William Alderman.

10. Generally the submissions of objectors were concerned with the increased density of population if the facility were allowed, increased traffic generation on Broken Head Road, loss of privacy, the viability of the proposed sewerage system, the potential damage to flora and fauna and to the environmentally sensitive site.

11. Most of the written objections were predicated upon the plan that had been submitted to council as part of the development application namely, for a facility comprising of 136 units, some of which were located on the western side of the Creek. In view of the amended plans for the proposed facility which eliminated any building on the western side of the Creek and resulted in a reduction of the number of units to 36, the Court considered that it was essential for council to readvertise the amended proposal.

12. On Tuesday 28 November 2000 the council published notice of the amended proposal in the Byron Shire Echo, a newspaper circulating in the Byron Shire. The notice advised the public that on 21 November 2000 the council resolved to agree to the Court granting consent to the facility as amended upon appropriate conditions and called for further submissions.

13. In response to the advertisement of 28 November 2000, thirty-five written submissions were received. Most of which were renewed objections. Mr Digwood and Ms Wyne requested the opportunity to provide oral objections to the Court. The Court heard their further objections by videolink on 7 December 2000. Three additional objections were received by council on 11 December 2000 from Margaret Wyatt, Mr Geoffrey McCoy and Mr Mark Ogan. The matters raised in such objections were substantially the same as those already raised for consideration in the submissions of objectors. The Suffolk Park Progress Association expressly raise their concern that no development be allowed in the southern part of the site. Although it is not specifically stated, the Court assumes that the objection to such development in that portion of the site is based upon concern for fauna and flora and for the environmentally sensitive Creek. Mr Digwood suggested a smaller development would still be economically viable for the developer.

14. Mr Digwood also raised concerns for traffic movements and said that the applicant’s traffic estimate of three trips per day per unit should be doubled to take account of the fact that each trip would presumably be a ‘round trip’, thereby doubling the estimated vehicle movements. Concern was also expressed that the sewerage treatment plant was designed to service a facility of 200 persons. In the event that more than 2 persons occupied each unit during the high season, and taking an example of 2.5 persons on average per unit, the sewerage treatment system would need to be designed to accommodate 270 persons as well as visitors to the restaurant and the conference centre. Mr Digwood was also critical of a letter written by the National Parks and Wildlife Service dated 10 October 2000 in which it agreed to a 15m reduction in the buffer zone to be established on each side of the Creek.

The Court’s finding

14. The Court has noted the concerns of the objectors. The Court has had the benefit of the site inspection and expert evidence contained in numerous reports tendered in evidence during the hearing. Such evidence is relevant to the Court’s consideration of essential issues itemised in s 79C(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The applicants written expert evidence and reports were contained in the following statements and supplementary statements:-

· Statement of Evidence by Mr Graham Peter Meineke, Town Planner

· Statement of Evidence by Mr Geoffrey Graeme Manifold, Architect

· Statement of Evidence by Mr Richard John Smith, Civil Engineer

· Statement of Evidence by Mr Peter Parker, Environmental Consultant

· Statement of Evidence by Dr Robert Patterson, Soil Scientist and Environmental Engineer

· Statement of Evidence by Mr Ray Anderson, Chemical Engineer

· Local Environmental Study, ‘Everglades Site, Suffolk Park’ 1995, Resource Design and Management Pty Ltd

· Statement by Mr Christopher John Power, Environmental Planner

· Environmental Impact Statement, Wastewater Management Facility, GeoLink

· Byron Flora and Fauna Study, A report prepared for Byron Shire Council, Landmark Ecological Services Pty Ltd, Ecograph and Terrafocus Pty Ltd

· Statement in Reply by Dr Daniel Martens, Environmental Engineer

· Statement in Reply by Mr Ian Joliffe, Project Manager, Gutteridge Haskins & Davey Pty Ltd

· Statement of Evidence by Professor John Beard, Medical Officer of Health

· Statement of Evidence by Mr Peter Boyd, Resource Officer

· Statement of Evidence by Mr R Green, Hydrogeologist

· Statement of Evidence by Mr Joseph Patrick Hogan, Environmental Scientist

· Statement of Evidence by Mr David Milledge, Consultant Wildlife Ecologist

14. Having weighed up all of the evidence the Court is satisfied that council’s decision to consent to the development application as amended is justified. The site is extensive in area and the proposed facility will occupy only a fraction of the site. The revised facility has been carefully designed to minimise any impact upon important flora and fauna. The development in the southern part of the site will be confined to an area which will not cause any significant impact on vegetation and will not destroy the banks of the Creek. The amended proposal results in the elimination of development on the western side of the Creek and recognises the need to protect that area from development. In this respect the applicant has made a substantial concession. The establishment in that portion of the site of the eco-lodges would result in the opportunity for persons visiting the site to have the benefit of the natural fauna and flora. The proposal also satisfies the slight variation to Amendment No 25 to the LEP as proposed by council. Such amendment will ensure that the remainder of the site is conserved.

15. Whilst Mr Digwood raised the concern of the size of the facility and its potential to be economically viable if the number of units proposed were further reduced, such considerations are not a matter for determination under the provisions of the EP&A Act. Section 79C(1) thereof requires the Court to have regard to the matters enumerated therein and the financial viability of a development is not one of the matters for consideration.

16. The issue of sewerage disposal and the capacity of the proposed sewerage treatment system is a matter upon which council has now provided specific evidence. The council’s Dr D Martens prepared a report dated 12 December 2000 specifically in answer to the concerns of residents that the proposed system will be both viable and effective.

17. The Court is also conscious of the concerns of residents related to increased traffic which might be generated by the proposal and by the parking arrangements on site. The supplementary statement of Christopher John Power dated 13 December 2000 addresses such concerns. Further the applicant has agreed to make provision for parking that will provide a setback from Broken Head Road. The Court does not consider that any increase in traffic movements warrants refusal of the facility.

18. Generally the Court considers that the facility, subject to the conditions formulated by council is an environmentally responsible development when considered in the context of s 79C(1) of the EP&A Act. The environmental constraints should ensure that there is no significant impact on the site. Recognition must be given to the fact that the land is zoned for the purpose for which consent is sought.

Orders

21. The Court makes the orders set out in the consent orders attached hereto and marked “A”.

ATTACHMENT “A”

TO THE COURT ORDER DATED _20 December 2000

FOR APPEAL NO. 10114 OF 2000

Haysom Spender ats Byron Shire Council

1.

2. Typical 12 Unit Floor Plan A-DD-101 A 26/11/99

3. Central Facilities Floor Plan A-DD-102 D 05/12/00

4. Typical 8 Unit Building Floor

Plan & Roof Plan A-DD-104 A 26/11/99

5. Water Reclamation Plant Floor Plan A-DD-105 A 26/11/99

6. 4,28 & 32 Unit Buildings Floor Plans A-DD-106 A 22/11/00

7. Typical Unit Elevations 12 Unit

Building Shown 4,8,28 & 32 Unit

Buildings Similar A-DD-201 A 26/11/99

8. Typical Unit Building Sections A-DD-301 A 26/11/99

9. Landscape Plan A-DD-010 D 22/11/00

10. Road Intersection

Layout Plan A890/1 A 01/11/00

Layout Plan A890/2 A 01/11/00

as modified by any conditions of this consent.

3. A copy of this consent and approved plans are to be kept on site at all times while work is being undertaken and while the Tourist Facility is in operation.

4. Pursuant to Section 80A(2) of the Environmental Planning and Assessment Act, 1979, the following conditions relate to aspects of the development that are ancillary to the core purpose of the development. They are to be carried out to the satisfaction of Byron Shire Council and shall not be assessed for the purpose of compliance, or otherwise deemed acceptable, by any person other than Byron Shire Council:

· Landscaping and flora and fauna management plan, vegetation management and vegetation maintenance plan/s and works,

· stormwater disposal plan/s and works,

· plans and works associated with approvals under Section 138 of the Roads Act, and

· all structures over waterways.

5. In these conditions the following definition applies:-

· Sewage Treatment Plant ("STP") includes the sewage treatment plant or water reclamation plant buildings and its components and structures, the effluent storage tank, the underground irrigation system, the vacuum reticulation system and all other interconnecting and incidental or ancillary pipes, pumps and connections and any waste products from the plant including biosolids/sludge.

6. Development Consent granted by the NSW Land and Environment Court in proceedings No. 10131 of 1997 on 14 September 1998 (and the associated construction certificate) and all existing use rights attaching to the land are to be surrendered upon the commencement of this consent. This must be in the form of written memorandums to Council in accordance with Clause 68 of the Environmental Planning and Assessment Regulation, 1998, signed by the owner of the land.

7. (a) The owner shall agree to do all things necessary to create registered easements burdening the site and benefiting each of the six lots adjoining the site to the west (as shown on the plan No. 1 “site plan” referred to in condition 1) for pedestrian access from the rear of each of the six lots down to and then along the southern boundary. The details of and the costs associated with creating and constructing the pedestrian access to be agreed between the owner of the site and the owners of the six lots. The grant of each of the easements must contain provisions in similar terms to condition C27 of this consent.

(c) The benefit of the pedestrian access easement over the site for any particular lot is to continue only for as long as that particular lot is used for the purposes of a single residential dwelling or two dwellings and each easement must contain a provision to this effect.

8. In accordance with advice from DLWC as an approval body under the integrated development provisions of the EP&A Act, section 3A permits under the Rivers and Foreshores Improvement Act (1948) are required prior to the commencement of construction works for any works within the banks and within 40m of the high banks of the “Everglades Canal” and “Tallow Creek” and any other water course through the property. Section 3A Permits must cover specific works including bridge structures and excavations for infrastructure and DLWC has advised that these permits will be issued subject to conditions contained in the annexure to this consent titled “GENERAL TERMS OF APPROVAL” which conditions are incorporated into and form part of this consent.

C The following conditions are to be complied with prior to issue of a Construction Certificate.

1 A certificate by a professional Geotechnical Engineer is to be provided to the Principal Certifying Authority, certifying that the site is stable and will not be affected by landslide or subsidence at, above or below the site when the buildings are erected. The certificate shall be prepared in accordance with AS 1726 and Council Policy No. 5.18 (Geotechnical Reports).

2 An approval under Section 68 of the Local Government Act 1993 to carry out water supply work must be obtained prior to issue of a Construction Certificate.

A section 68 approval may be obtained through an application to Council in reticulated areas or to Rous Water , if appropriate, in rural areas.

3 Approvals under Section 68 of the Local Government Act 1993 for the erection and operation of the STP to be obtained from Council. Such approvals must be issued after the date of this consent. The applications for Section 68 approvals must be accompanied by a report prepared by a suitably qualified professional with demonstrated experience in effluent disposal matters, which addresses all the issues raised in conditions relating to the STP.

4 A certificate from a qualified Engineer is to be provided certifying that the site will adequately drained in accordance with Council's standards, to a satisfactory point(s) of disposal for drainage as nominated by the Council.

5 Stormwater discharge is to be collected and disposed of in a controlled manner. The rate of disposal shall be as far as practical as appropriate to the site in an undeveloped state. Details of on-site retention measures required to achieve this together with a stormwater management plan are required to be submitted to and approved by Council and shall include all design calculations. The stormwater management plan to include details of how the requirements of conditions T19 will be addressed.

6 A detailed engineering plan showing driveways, parking areas, and the means of access from the road to the proposed development. Plans are to include site conditions affecting the access, pavement levels in relation to floor levels, and access for people with access disabilities, and should nominate levels in relation to the kerb (or nominated fixed datum) and grades. Proposed parking spaces located south of the access road and east of Buildings CF4/CF6 are to be constructed of grasscrete pavers or similar hard porous surface and shall comply with Part G of DCP 1.

7 An amended plan showing a minimum 157 on-site car parking spaces is to be submitted for Council’s approval, generally in the location and format of the parking spaces identified in plan No. 1 “site plan” referred to in condition 1. Council will have regard to ecological advice when determining the final approved location of parking spaces located to the west, south and east of proposed Buildings CF4/CF6.

8 Full construction details certified by a practising structural engineer shall be provided for approval of Council for construction of the proposed footbridges over Everglades Canal and adjoining waterways in the northern part of the site and the footbridge/ emergency vehicle access over Tallow Creek. The bridge shall be 3m (min) – 3.5m (max) width.
9 Full design plans for the proposed access road servicing units located in the south western corner of the site shall be submitted for council approval. The access road shall consist of a concrete, paving block or other similar surface acceptable to Council with a width of 3m (min) – 3.5m (max). Any widening of this existing access track to accommodate this access road is not to involve the 1`0m wide buffer to the Lowland Rainforest on Floodplain vegetation community.

10 Full design plans for the proposed emergency vehicle accessway located on the northern side of Everglades Canal shall be provided to Council for approval. The accessway shall provide a minimum width of 3m (min) – 3.5m (max ).

11 Payment of the contributions as set out in TABLE “A” in Schedule One titled “EP&A Act Section 94 Contributions”. These are levied in accordance with the Byron Shire Council Section 94 Plan for Open Space, Community Facilities and Road Upgrading, dated 22 June 1993 and the Section 94 Plan for Shire-Wide Community Facilities dated 24 June 1997. The Plans may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby.

12. Satisfactory arrangements are to be made with Council for the provision of water supply services to the land.

A copy of the Certificate of Compliance under Section 27 of the Water Supply Authorities Act 1987, is to be lodged with Council prior to the release of any Construction Certificate.

(NOTE:- Section 27 Certificates will be issued on payment of the contributions for Water as set out in TABLE “B” in Schedule One titled “Water Supply Authorities Act 1987 Section 27 Levies” schedule. Developers are urged to make an early application for a Section 27 Certificate.

13. Payment of a bond or the giving of a bank guarantee to the Council’s satisfaction of $10,000 to Council for work carried out in the road reserve to gain access to the property. The owner will be held responsible for any damage to footpaths, driveway crossovers etc. caused during building operations. The security bonds will be held until any damage to Council facilities is repaired to the pre-existing condition.

14. The top of the floor surface of all buildings is to be a minimum of 300mm above finished ground level (including all floor wastes).

15 Plans and details of all footpaths , access roads and boardwalks within the site are to be submitted to Council for approval.

16 Access and facilities for persons with access disabilities are to be provided to and within the development in accordance with AS 1428 - Design for Access and Mobility and Part D3 of the Building Code of Australia.

17 All works to be designed and constructed to at least the minimum requirements of Council's "Specification for Engineering Works."

18. Details of measures to be taken to mitigate sedimentation and erosion during construction of this development, including the event of flooding during construction, are to be provided to the Council. An Erosion and Sedimentation Control Plan prepared in accordance with the relevant sections of the Department of Housing Manual, “Soil and Water Management for Urban Development” shall be submitted to and approved by Council.

19. The stormwater design is to cater for the 1 in 100 year flow, taking account of ocean entrance and storm surge conditions in Tallow Creek. The applicant is to demonstrate that the Probable Maximum Flood flow path will not cause damage to private or public property, including roads.

20. Plans and details are required for all road construction and civil works, both in Broken Head road and within the subject land, certifying that all proposed works will comply with Council specifications, guidelines and requirements and any relevant conditions of this consent. All plans and details are required in triplicate.

21. Submission of the following:-

b. Engineering plans for all works associated with the STP;

c. Engineering plans for water supply reticulation including details of the proposed method of disinfection of the completed reticulation such that public health requirements are satisfied; and details of pipe fittings and material types (it should be noted that all DICL pipes greater than 180mm diameter are polysleeved). Prior to reticulation work commencing, all materials are to be inspected by the Council.

d. A Plan showing the location of all service conduits (water, NorthPower & Telstra) is to be submitted and approved with the engineering plans.

e Engineering plans addressing flooding issues by showing the following:-

(ii) All buildings (accommodation and central facility type buildings) should have a habitable floor level not less than the flood planning level plus 0.5m.

(iii) All access ways to the accommodation units are to have a deck level to at least 300mm above flood planning level.
(iv) The flood planning level be adopted as the 100 year ARI flood event having regard to ocean entrance conditions and storm surge in Tallow Creek .
(v) The culvert under the car park shall be a size that shall demonstrate no reduction in flood capacity of the existing culverts under Broken Head Road.
(vi) The pedestrian/emergency access crossing of Tallow Creek at the southern boundary shall be a bridge the underside of which shall be at a level equal to or above the banks of Tallow Creek.
(vii) The car park levels are to be not less than the 20 year ARI flood level.
(viii) Allowance being made in the design of the buildings and their piers for an appropriate horizontal loading from any debris that could potentially accumulate on the piers in times of flooding.

(f) All plans are to be submitted in triplicate and are to comply with Council's Specifications for Engineering Works. Plans are to include location and details of electricity and telephone services.

23. This application attracts a Long Service Levy of $2500. This levy must be paid to the Long Service Payments Corporation, these payments made at Council’s office in Station Street, Mullumbimby.

24. The applicant shall submit for Council’s approval an Acid Sulfate Soil Management Plan prepared in accordance with the provisions of the ASSMAC Manual (NSW).

25. All buildings are to be finished in colours to blend with the surroundings. Details are to be submitted to and approved by the Director of Local Approvals and Compliance Services.

26. A final landscaping plan or plans is to be submitted and approved by the Council in accordance with plan A-DD-010 Revision D-Landscape Plan together with details and specifications, including the following details:-

(a) lists of recommended plant species for each of the landscaping, riparian zone and buffer areas (including fire retardant species around the buildings in the southern area - A9/10/11/12 of the site),

(b) cross-sections of the riparian, buffer and the other various areas showing the planting details and protective fencing while vegetation becomes established, particularly around buildings A9/10/11/12 in the south of the site and along the western edge of the Tallow Creek riparian zone,

(c) appropriate densities of plantings, particular in the riparian zone, Cypress forest area and buffers providing protection to the Lowland Rainforest on Floodplain,

(d) the re-establishment and maintenance of habitat connection across the beach access in the southeast corner of the site,

(e) ongoing maintenance of the landscaping throughout the site,

(f) revegetation of the northern and southern banks of the Everglades canal to the east and west of the car park bridge.

(g) appropriate screen planting (at the expense of the applicant) to the Council's satisfaction on No. 99 Broken Head Road, near its northern boundary with the site; and on the site near its southern adjoining boundary to No. 99 Broken Head Road.

(h) identification of proposed trees to be removed because of construction works.

(i) identification of trees where work or construction activities are to take place within; or within 3metres of, the dripline and protective measures for those trees during construction.
(j) protective fencing during construction and up to occupation for buffer and riparian areas, and to any other ecologically sensitive or important areas.

27. A comprehensive flora and fauna management plan, incorporating short and long term programs, is to be submitted to the Council's satisfaction. This must include details regarding rehabilitation and protection of threatened fauna habitants, weed management and cane toad, feral cat, fox, domestic cat, dog management strategies and the movement of native fauna between the site and the adjoining lands having regard to any proposed fencing.

28. The revegetation of 15m buffer/riparian zone on both sides of Tallow Creek and the other buffer areas are to be substantially implemented in accordance with the approved final landscaping plan referred to in condition C26.

29. Submission of a flood evacuation plan to Council’s satisfaction for the site when fully developed and occupied. It shall address matters such as, but not restricted to, inundation patterns, evacuation routes and procedures, trigger levels for actions and how the plan will be implemented.

30. A fire sprinkler system is to be provided to the cabins and buildings in the southern part of the site with details of this system to be provided to the Council for approval.

31. Details of the proposed “acoustic barrier” prepared by a suitably qualified acoustic consultant on the site at the boundary with No. 99 Broken Head Road as shown on plan No. 1 “site plan” referred to in condition 1 to be submitted to the Council.

32 A $10,000 bond or bank guarantee is to be given and held by the Council for five years as security for the Council to use at its discretion to carry out any necessary maintenance of the approved revegetation of:-

33. The applicant shall prepare a land capability map to provide information in accordance with Section Four - "Evaluating the Site" of the Environmental & Health Protection Guidelines 1998 so that this map provides sufficient detail to determine the areas suitable and the areas not suitable within the irrigation area (as shown on the plan referred to in condition T24(c)(i)) for effluent application.

34 Delete

35 A plan of management with input from appropriately qualified experts to the Council's satisfaction must be submitted to Council for the STP including details about:-

(a) the sub-surface irrigation scheme design, irrigation schedule and monitoring regime with the schedule to irrigate only up to 80% of field capacity and continuous moisture monitoring with at least 5 sensors covering irrigation sectors,

(b) an operator's manual for personnel on the property defining their responsibilities and actions (to be included in their contract of employment), including seasonal and %-occupied adjustments to the STP and management arrangements for days absent,

(c) limits on access to any confined spaces of the STP or effluent holding areas except for trained staff, with notices erected accordingly,

(d) a manual for Rous Water (or any other future operator) defining their responsibilities and actions including backup arrangements (parts and expertise) for the STP,

(e) ongoing daily site hydrological data including:-

(i) daily groundwater levels @ two locations,

(ii) daily hydraulic load/daily volume treated,

(iii) daily effluent applied volume,

(iv) daily soil moisture,

(v) daily depth/volume of wetweather storage facility, and

(vi) daily resort occupancy,

(f) a 'BOOT' contract with a suitable firm for the STP, also defining their on-going long-term responsibilities and actions (to be included in the contract), including backup arrangements (expertise) for the STP,

(g) a daily STP operations log showing:-

(i) general operational comments,

(ii) faults/failures,

(iii) action taken during times of faults/failures,

(iv) comments on resolution of actions,

(v) adjustments to STP which were made and the reasons for these adjustments, and

(vi) condition of irrigation fields, failures, and remedial actions taken,

(h) details of electrical networks to be supplied by standby generator and method of activation,

(i) details of the contract and approved disposal site for biosolids removal,

(j) design for access by the tanker removing biosolids and of bunding for the potential spill area,

(k) a 3-monthly for the first 2 years and a 6-monthly for the next 2 years and thereafter annual soil monitoring regime, with sampling at 3 sites at depths 100mm and 500mm in areas where the effluent is being applied, to test for the following factors:-

pH

electrical conductivity EC

exchangeable cations and

exchangeable sodium %age Na, Ca, Mg, K, Al,ESP

cation exchange capacity CEC

extractable phosphorus (as Bray P)

nitrate/nitrite - N Nox - N

ammonia/ammonium - N Amm - N

Kjeldahl - N TKN - N

(l) subject to condition C42 a 3-monthly groundwater monitoring regime for 2 years, 6 monthly for the next 2 years and thereafter at annual sampling at 2 piezometer sites in each irrigation area and 1 piezometer site between the disposal field and any creek at 100mm and 1500mm below surface water level for the following factors:-

5 day Biochemical oxygen demand BOD5

pH

electrical conductivity EC

cations (sodium, calcium,

magnesium/potassium, aluminium) Na,Ca,Mg,K,Al

sodium absorption ratio SAR

soluble phosphorus PO4 - P

nitrate/nitrites - N NOx - N

ammonia/ammonium - N Amm - N

Kjeldahl - N TKN - N

faecal coliforms FC

(m) a 3-monthly creek sampling regime for 2 years, 6 monthly regime for the next 2 years and ongoing annually at 2 sites, one upstream and one downstream of the disposal field for the following factors:-

5 day Biochemical oxygen demand BOD5

pH

electrical conductivity EC

cations (sodium, calcium,

magnesium/potassium, aluminium) Na,Ca,Mg,K,Al

sodium absorption ratio SAR

soluble phosphorus PO4 - P

nitrate/nitrites - N NOx - N

ammonia/ammonium - N Amm - N

Kjeldahl - N TKN - N

faecal coliforms FC

(n) a 3-monthly STP monitoring regime for:-

5 day Biochemical oxygen demand BOD5

Suspended Solids SS

pH

electrical conductivity EC

total phosphorus TP

ammonia/ammonium – N Amm - N

nitrates/nitrites – N Nox - N

Kjeldahl – N TKN - N

faecal coliforms FC

aluminium Al

36 The design of the buildings may allow for the collection of rainwater and for its use on site.

37 The operator and owner of the tourist facility at any time is to enter into a deed of agreement, to the Council's satisfaction with Rous Water (or if necessary in the future with another public authority suitable to the Council) for the management, operation, maintenance and monitoring of the STP, in accordance with:-

(a) any specifications and requirements of the manufacturer/builder of the STP

(b) the STP requirements of this consent, and

(c) the letter from Rous Water dated 10 November 2000
and this agreement is to continue in force for as long as the land is used in accordance with this consent.

38 A positive covenant to the satisfaction of the Council and at the applicant's expense is to be placed on the title of the land in favour of the Council requiring compliance with any agreement made in accordance with condition C37.

39 A restrictive covenant to be placed on the title of the land at the expense of the applicant to the Council's satisfaction in favour of the Council restricting the use of the land for any purposes which creates sewage effluent for disposal on site unless there is an agreement as referred to in condition C37.

40 (a) The creation of a section 88B of the Conveyancing Act 1999 easement 2m wide in favour of the Council to be placed on the title of the land for the provision of a cycleway. The easement is to be located along the southern boundary, generally as shown in the relevant plan of DCP9.

(d) Plans and details of the proposed cycleway are to be submitted and approved by the Council and the owner is to construct the approved cycleway.
(e) This condition is imposed in lieu of a section 94 contribution for bikeways.

41 Plans and details are to be submitted to the Council for elevated boardwalks to be constructed on all existing tracks and accessways through the vegetation in the 7(a) and 7(b) zoned areas of the land, other than within the cypress and dry sclerophyll associations (as shown on plan No. 1 “site plan” referred to in condition 1).

42 A hydrogeological report by a qualified Hydrogeolgist is to be submitted to determine and prevent possible groundwater/effluent ponding and to establish an appropriate groundwater monitoring program. This report should include the following:

(a) installation of monitoring bores (max. depth 4m) in each irrigation area,
(b) hydrogeological tests to estimate hydraulic conductivity using acceptable industry methodology,
(c) measurement of groundwater levels, and determination of flow directions,
(d) within each proposed irrigation area the location of at least one automatic data logger placed inside a monitoring bore that measures and records continuous groundwater levels,
(e) consideration of impacts on domestic groundwater users in the area.
(f) a proposed groundwater quality testing program to cover:

· establishment of a baseline of groundwater quality, performance and cut-off criteria for monitoring purposes on the basis of the ANZECC guidelines,

· collecting representative samples with consideration for seasonal variation by all monitoring bores/wells being constructed to a minimum depth of at least four metres into the existing regional water table,

· the monitoring site/s selected not being located in an area where future development will either obstruct or destroy the bore/well unless suitable measure are taken to secure the site for on-going monitoring purposes,

· a clear description of the intended duration of monitoring including both pre and post operational activities, and
· a copy of all water quality results with an annual report interpreting the results carried out by a suitably qualified person being forwarded to the Department of Land & Water Conservation and Byron Council for annual review,

(g) contingency procedures being developed to manage the impacts that the management strategies fail to predict or control including firstly, required remedial action if monitoring results indicate that the agreed standards or performance indicator levels are not being achieved due to failure or ineffectiveness of the management strategies, secondly, required restoration action when the remedial action fails or monitoring results identify severe failure of management strategies to meet agreed standards and in these extreme cases options for the operations to cease while the site is restored must be considered.
[Note: All monitoring bores/wells are required under Part V of the Water Act to be licensed by DLWC. The local DLWC groundwater professional must be consulted regarding the report and the efficiency of the proposed actions and work.]

P The following are Prescribed Conditions, pursuant to S.80A (11) of the Environmental Planning and Assessment Act and Clause 78 of the Environmental Planning and Assessment Regulation 1998.

1 Compliance with Building Code of Australia (Clause 78A of Regulation)

b This clause does not apply to the extent to which an exemption is in force under clause 80H or 80I, subject to the terms of any condition or requirement referred to in clause 80H (6) or 80I (4).

2 Excavations and backfilling (Clause 78D of Regulation)

b All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

3 Retaining walls and drainage (Clause 78E of Regulation)

If the soil conditions require it:

b adequate provision must be made for drainage.

4 Support for neighbouring buildings (Clause 78F of Regulation)

ii if necessary, must underpin and support the building in an approved manner, and

iii must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

c In this clause, allotment of land includes a public road and any other public place.

5 Protection of public places (Clause 78G of Regulation)

b If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

c The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

d Any such hoarding, fence or awning is to be removed when the work has been completed.

Note: Should it be desired to erect any hoarding or fence on Council footpaths or road reserves, a specific application is to be made to Council and the appropriate fees paid.

6 Signs to be erected on building and demolition sites (Clause 78H of Regulation)

ii showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

c This clause does not apply to:

ii building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

7 Toilet facilities (Clause 78I of Regulation)

ii a standard flushing toilet connected to a public sewer, or

iii if that is not practicable, an accredited sewage management facility approved by the council, or

iv if that is not practicable, any other sewage management facility approved by the council.

In this clause:

Approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.

Public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

Sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

W The following conditions are to be complied with prior to the commencement of works.

1 Erosion and sedimentation controls approved by Council in accordance with Council’s ‘Code of Practice for Erosion and Sedimentation Control’ must be provided on site.

2 Prior to any water being drawn from the site a water meter and an appropriate backflow prevention device must be fixed in position. The applicant shall liaise with Council’s Water Supply Technical Officer regarding the water services.

3 Approval is required under Section 138 of the Roads Act. Application for approval may be made to Byron Shire Council by submission of an engineering plan showing works within the road reserve.

4 Erection to Council’s satisfaction of the approved protective fencing referred to in condition C26(j).

5 Written notification of intention to commence works is to be forwarded to the Council not less than seven (7) days prior to work commencing.

6 All asbestos wastes associated with removal of the existing buildings are to be disposed of in accordance with the requirements of the Workcover Authority. The applicant/owner is to produce documentary evidence that this condition has been met. Council requires 48 hours notice prior to disposal at the waste depot.

7 Trees and vegetation to be retained are to be fenced off to minimise disturbance to existing ground conditions within their driplines and to be maintained for the duration of the site clearing, preparation and construction works. Each tree is to be fenced off at a 3m radius from the trunk using steel star pickets at a maximum distance of 2m apart using a minimum of 3 strands of steel wire constructed so the fence encloses the tree. The fence is to be highlighted with orange barrier mesh attached to the outside of the fence and continuing around its perimeter. The minimum height of the entire fence is to be 2m or approved similar. In the case of the western buffer or riparian zone to Tallow Creek and buffers to Lowland Rainforest on Floodplain, fencing is to be maintained in place until planted vegetation has reached an average of 2m in height.

8 No plumbing and drainage works are to commence until an appropriately licensed person has obtained a Plumbing Permit available from Byron Shire Council's Water and Sewerage Services Division specific to the subject property and subject works.

9 The applicant must:-

(b) given the Council at least two days notice on prescribed ‘Form 7’of the person’s intention to commence the erection of the building.

(c) notify the Principal Certifying Authority of the Compliance with Part 6 of the Home Building Act 1989, if relevant.

10. The developer and/or contractor must produce evidence to the PCA of Public Liability Insurance cover for a minimum of $10 Million. (see also condition D7).

D Conditions to be complied with during construction

1 The proponent shall provide a Type C intersection with a Type B Left Turn Treatment at the entrance to the proposed development. The design shall incorporate a bus bay on the southern side of the access in accordance with the plans approved as part of this development application.

2 Compliance Certificates are required for the following:

ii Footings (including placement of steel prior to pouring any concrete) have been constructed in accordance with the approved plans and relevant Australian Standards.

iii Concrete slabs or final floor levels have been constructed in accordance with the approved plans and relevant Australians Standards. The certificate is to state that the building is correctly sited on the site and any minimum Reduced Floor Levels on the development consent have been complied with.

c Air conditioning: installed and operating according to approved plans.

d Structural Framing: including wet area sealing, wind bracing, and tie downs prior to covering.

e Fire wall and sound transmission: including fire rated ceilings - all prior to concealment.

f Retaining walls: (where exceeding one metre in height) - prior to concrete pour and/or backfilling.

g Storm water infiltration pit: constructed in accordance with plan/s approved by Council.

h The STP.

i Prior to occupation, a Compliance Certificate is to be issued indicating the buildings compliance with the relevant terms of the Approval and/or Standards of Construction detailed in the Building Code of Australia.

j Copies of documentary evidence including Survey Reports, Engineering Certificates, Glass Certificates, Truss Certificates, Wet Area Certificate, Smoke Detector Certificates and Termite Control Certificates, and any relevant information are to be submitted to the Principal Certifying Authority upon completion of each specified stage of construction and prior to commencement of the subsequent t stages and/or occupation.

3 The following inspections are required and can ONLY BE UNDERTAKEN by Council:

ii external drainage

iii stack

iv water

v final

· All sanitary plumbing and drainage shall be hydrostatically tested prior to backfill or concealment and witnessed by Council’s Plumbing Inspector.

· Hot and cold water services shall be tested in accordance with AS/NZS 3500.1.2 Section 13 and AS/NZS 3500.1.2 Section 8.

· The Licensee or authorised representative of the Licensee is to meet the inspector on site at the designated appointment time for the duration of the inspection.

· If the Licensee or authorised representative is not in attendance during the inspection and a fault is evident, then a re-inspection fee in accordance with Council’s fees and charges shall apply.

· Where an additional inspection is required due to non-compliance, an additional fee in accordance with Council’s fees and charges may apply.

· Hot and cold water inspections are conducted at random or checked as part of the frame inspection. Owners may request specific hot and cold inspections subject to payment of an additional fee in accordance with Council’s fees and charges.

c work in road reserves

4 To ensure compliance with the flooding requirements a registered surveyor is to certify compliance with the approved engineering and building plans for the floor level of all buildings and the car park prior to construction or slab being poured. A copy of the certificate is to be provided to PCA.

5 (a) Construction works which may interfere with the amenity of any neighbours or the neighbourhood by generation of noise, intrusive lighting, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise are to be limited as follows:-

· Saturday, 7 am to 1 pm if inaudible on residential premises, otherwise 8 am to 1 pm.

6 Delete

7 All care is to be taken to ensure the safety of the public in general, road users, pedestrians and adjoining property. Council is not responsible for any negligence caused by the undertaking of the works.

8 All measures are to be taken to prevent damage to trees and other vegetation (including root systems) to be retained during site works and construction. Trees and other vegetation to be retained are to be protected by the erection of suitably sturdy protective fencing to the satisfaction of the Director of Local Approvals and Compliance Services. Approved fencing is to be in place prior to the commencement of any works on the site and must remain in place until the works are complete. No building materials or other items are to be placed or stored within the fenced off areas. In the case of the western buffer or riparian zone to Tallow Creek and buffers to Lowland Rainforest on Floodplain, fencing is to be maintained in place until planted vegetation has reached an average of 2m in height.

9 No materials are to be sited within the driplines of any tree or within five (5) metres from the trunk of any tree e.g. building materials, machinery, portable toilets, chemicals and concrete unless shown on the approved plans for the construction certificate.

10 Where excavation is within a tree’s dripline and the tree is to be retained, the face of the excavation will be covered with an organic fabric mulch such as Jutemaster “R” or an approved similar material to reduce erosion and soil moisture loss. This will be firmly pegged into place over the surface of the excavation and be pegged to the top of the excavation at the former ground level. Pegs to be located as per manufacturer specifications or approved similar method. This organic fabric mulch is to be left in place and to be maintained until the completion of any construction works.

11 Any services to the site/s are to be located independent of, and in a manner not detrimental to, any trees on the site.

12 Where services to be laid are in conflict with any lateral structural support roots of any tree all care will taken to manually excavate around or under such roots to position the service with minimum root disturbance.

13 No soil or fill material is to be placed within a tree’s dripline so as to cause changes in surface level by more than 50mm from the existing level and such soil is not to be compacted. Such soil fill should not be finer than that being covered in situ, e.g. clay should not be placed over loam soil.

14 Sediment and erosion control measures must be maintained at all times until the site is made stable (i.e. by permanent vegetation cover or hard surface).

15 The following inspection/s will be required for the WATER SUPPLY WORK:

b Hot water pipe work

c Commissioning backflow prevention devices

d Commissioning thermostatic mixing valves

e Metering

f Final – finished job

Note: Inspections will not take place unless the plumber or the plumber’s representative is onsite. Re-inspection fees will apply to plumbers not onsite for inspections.

16 Master Meter Position : The Master Meter/s shall be installed generally in accordance with the NSW Code of Practice for Plumbing And Drainage. However, where a meter is likely to be situated near an entrance or in a graded foot path it shall be installed above ground and recessed into the building.

17 The following inspection/s will be required for the SEWERAGE WORK:

b External drainage

c Stackwork

d Trade waste system

e Final

Note: Inspections will not take place unless the plumber or the plumber’s representative is onsite. Re-inspection fees will apply to plumbers not onsite for inspections.

18 All plumbing and drainage work is to be installed by a suitably licensed person. All plumbing and drainage works are to be carried out in accordance with the NSW Plumbing and Drainage Code of Practice, AS/NZS 3500 Parts 0-4, and the Local Government (Water, Sewerage and Drainage) Regulations.

19 Water efficient devices must be installed where appropriate including:

b Dual flush toilet systems;

c Water efficient shower nozzles.

20 Builders rubbish containment is required in order to contain all builders rubbish on site by providing ‘Builders Skips’ or an enclosure on site for the storage of rubbish. Footpaths are to be maintained clear of rubbish and all other deposits.

21 Delete

22 Maintenance of any protective fencing approved by any plans associated with this consent.

23 The owner or builder must give at least two days notice to the Jali Local Aboriginal Land Council and the Arakwal people of any excavation work to be carried out and the owner and builder must allow a representative from each of these groups to be present on site to monitor the excavation works.

O The following conditions are to be complied with prior to occupation of the buildings

1 Certification from an appropriately qualified landscape architect/landscaper and ecologist that the approved landscaping has been completed in accordance with the approved landscaping plan.

2 Provision of written evidence to the Principal Certifying Authority from an electricity supply authority that satisfactory arrangements have been made for the provision of underground electricity supply to the development.

3 Consolidation of all separate parcels of land into one allotment under one title is to be registered with the Land Titles Office.

4 The road and drainage works, driveways, access paths, boardwalks and parking areas be constructed in accordance with plans approved by this development consent and with Council specifications.

5 Signs are to be erected clearly indicating the availability of off-street parking and the location of entry/exit points, visible from both the street and the subject site.

6 The STP and water supply are to be completed and operational within the premises at no cost to Council.

7 Council is to inspect and be satisfied that the approved STP has been constructed in accordance with approved plans, specifications and standards to the satisfaction of the Council’s Director Water and Sewerage Services.

8 The premises or any part of the premises must not be occupied until an Occupation Certificate has been determined by approval in accordance with the procedure specified by Clauses 79J-L Environmental Planning and Assessment Regulations 1998 (Form 12). A Final Fire Safety Certificate (Form 15) must be provided before a Final Occupation Certificate (Form 12) can be issued for the building.

9 Water mains are to be extended by the Council from the Council’s existing mains from a point determined by the Development Engineer, at no cost to Council, to serve the development in accordance with the approved engineering plan10 A Compliance Certificate is to be provided to Council, certifying that all works have been completed in accordance with the Construction Certificate and in accordance with engineering standards adopted by Byron Shire Council.

10 A works-as-executed plan under the hand of a suitably qualified engineer or a registered surveyor must be lodged with the Council when the engineering works are complete. In the case where development involves filling or development of flood prone land, an additional copy of the works-as-executed plan relating to earthworks shall be submitted detailing the 1% flooding contour. One (1) microfilm copy of each sheet is required.

11 The lodgement of a maintenance bond bank guarantee being 5% of the value of the works constructed within the public road. The maintenance period is 6 months and shall commence from the date that works are inspected and approved by the Council.

12 The applicant is to submit a record of infrastructure coming into Council ownership upon final plan release. The information is to be submitted in the form of Council’s Standard Form titled “Asset Creation Record”. This form is available from Council’s Development Engineering Section.

13 Construction of the Cycleway in accordance with the approved plans referred to in condition C40.

T The following conditions will need to be complied with at all times

1 There is to be no washing with detergent or other cleaning agents of motor vehicles or other vehicles on site.

2 A 5m wide planted buffer strip is to be provided along the full length of the southern side of the Everglades Canal within the 2(t) zone. (Species, planting, management and maintenance details are to be provided as part of the landscaping plan).

3 The restaurant is to be available for use only by guests accommodated at the resort or utilising the conference facilities on site and is not to be open to the general public.

4 The burning off of trees and associated vegetation felled during clearing operations or generally is not permitted. Where possible, vegetation is to be mulched and reused on the site.

5 All loading and unloading to take place within the curtilage of the premises.

6 Any outdoor display lighting be so located or shielded so that no additional light is cast on adjoining land or that it will distract traffic.

7 The provision of a minimum 157 on site car parking spaces. Car parking areas are not to be used for storage of goods or materials or for any other purpose.

8 As soon as practicable after a final Fire Safety Certificate is issued, the owner of the building to which it relates:

b must cause a copy of the Certificate (together with a copy of the current Fire Safety Schedule) to be prominently displayed in the building.

9 All water meters required for billing purposes shall be supplied by Byron Shire Council only. Such meters shall be clearly visible and accessible at all times. Restricted or keyed access to water meters is not permitted.

10 The landscaping is to be carried out in accordance with the approved plan prior to occupation of the development and is to be maintained in perpetuity by the owner/s to Council’s satisfaction. Particular attention is to be paid to ensuring early and successful establishment of the plants (including ground preparation, fertilising, staking and protection where necessary).

11 Backflow prevention devices shall be tested and maintained in accordance with the NSW Code of Practice: Plumbing and Drainage.

12 A copy of the approved Construction Certificate including plans, details and specifications shall remain at the site at all times during the construction of the development and while the Tourist facility is operational.

13 The proposed use must not be conducted in such a manner as would interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise.

14 Only clean and unpolluted water being discharged to Council's stormwater drainage system or any watercourse.

15 The Equivalent Continuous (Energy Average) noise level of all sources from within the development shall not exceed 5 dB above the measured background level at the nearest residential boundary. Methodology for determining background noise shall be in accordance with EPA NSW “Industrial Noise Policy”.

16 The swimming pool water being recirculated, filtered and disinfected in accordance with the requirements of Council's Environmental Health Unit and the Health Department of New South Wales. The swimming pool water being maintained at satisfactory levels of purity for bathing at all times.

17 The occupier of any premises in or on which a swimming pool is situated must ensure that there is at all times maintained, in a prominent position in the immediate vicinity of the pool a sign in accordance with the regulations, bearing the words ‘Young children should be supervised when using this swimming pool’.

18 Pool water disposal and backwash is to be directed to the on site sewage system with connection to yard gully incorporating 100mm air gap. (Note: it is the responsibility of the applicant to inform the owners of the pool that, should it be necessary to pump water from the pool, this water is to be discharged to the sewer system. It may be an offence under the POEO Act to discharge pool water to the stormwater system or any other waterway).
19. All surface water from the carpark, including all stormwater runoff and debris must be directed away from the Everglades canal watercourse and treated to an appropriate quality prior to disposal or return to the creek system.

20. The Everglades canal must not be realigned or reconfigured in relation to the shape and slope of the bed and banks other than in accordance with the plans approved by this consent.

21. The applicant shall provide mosquito proofed transport driven by battery power or other energy source approved by Council similar to golf buggies for the transport of guests from the reception area to the eastern/southern areas.

22. No vehicular access to the site from Alcorn Street or to the adjoining Council reserve to the east except by emergency vehicles in times of emergencies.

23 The approved requirements for the ongoing implementation of the approved landscaping plan and the requirements of the approved flora and fauna management plan are to be implemented and complied with during the life of this consent.

24. The STP must:-

(a) be designed for a maximum of 200 persons and not to exceed the production of 40 kilolitres per day of treated effluent,

(b) contain the following treatment components:-

(i) a hybrid intermittently decanted extended aeration (IDEA) treatment plant to remove BOD5, suspended solids and nitrogen.
(ii) a micro filtration system,
(iii) a wetweather storage facility,
(iv) ultra violet disinfection of effluent prior to land application,
(v) alum dosing (before micro filtration) for removal of phosphorus,
(vi) a vacuum reticulation system,
(vii) a pH correction system prior to effluent application to land, and
(viii) sub-surface irrigation system,

(c) be designed so that the sub-surface effluent irrigation system is located

(i) generally in the area shown on the plan annexed and marked "Irrigation Area Plan", however, effluent shall not be irrigated in any areas within the irrigation area if those areas are shown on the land capability map (referred to in condition C33) as unsuitable for sub-surface irrigation unless ameliorating works as agreed between Council and the owner are performed to change the characteristics of the soil making it an acceptable area for irrigation of effluent, and

(ii) at a level of 150mm below the natural ground surface, or such higher level up to 50mm as may be approved by Council.

(d) operate to ensure that there is no surface ponding of effluent at any time,

(e) operate to produce effluent quality which shall meet the 90th percentile limits as set out below:-

BOD5 5mg/l
Suspended Solids 10mg/l
Total Nitrogen 6mg/l
Total Phosphorus 1mg/l
Faecal Coliforms 10cfu/100ml
Aluminium 5mg/l

the sampling for monitoring these levels shall be carried out prior to the application of the effluent to the land,

(f) not involve the re-cycling of waste water for use in toilets,

(g) preclude access to any confined spaces otherwise than by trained staff and notices shall be erected to the satisfaction of the Council accordingly,

(h) be operated to ensure that all biosolids/sludge from the STP are removed from the land to an approved offsite disposal area and there must be no disposal mixing or reuse of the biosolids/sludge in any form on the land,

25 If surface ponding occurs contrary to condition T24(d) then the STP operator shall carry out the necessary modifications to rectify this situation and during the period of modification effluent is not to be irrigated on areas where ponding occurs. If necessary, effluent must be pumped out of the wetweather storage tank and taken from the site by tanker.

26. Whenever there is a break down in the STP which may cause the dispersal of untreated or partly treated or polluted effluent or biosolids beyond the normal STP process or causes any treated effluent to pond :-

then all guests working at or using the tourist facility must be evacuated until the STP is operating in accordance with these conditions and the conditions of any section 68 approvals.

27. The water in the wetweather storage tank and underground irrigation system may only be used outside the irrigation areas in emergencies to mitigate the potential impacts of fire in proximity to the buildings and within the landscaped areas around the buildings.

28. An annual environment management report to be prepared and submitted to Rous Water and the Council in accordance with ISO 14001 addressing:-

(i) details of operation, management failure etc.,

(ii) general operation

(iii) operation of irrigation field,

(iv) STP effluent quality,

(v) soil quality,

(vi) groundwater quality,

and is to include a copy of the daily log book of daily hydrological observations and all maintenance records.

29 The STP is to be managed, operated, maintained and monitored by Rous Water, or if necessary in the future by another public authority suitable to the Council in accordance with the agreement referred to in condition C37.

30 The approved plan of management referred to in condition C35 must be complied with to the Council’s satisfaction.

31 No part of any existing track or accessway through the vegetation in the 7(a) and &(b) zoned areas of the land can be used until an approved elevated boardwalk (as referred to in condition C41) has been constructed to the Council’s satisfaction on that part of the existing track or accessway.

32. No new tracks or accessways are to be constructed or cleared through the 7(a) or 7(b) zoned land without prior consent from the Council.

NOTES:

Construction Certificate required:

This development consent is issued under the Environmental Planning and Assessment Act, 1979 and does not relate to structural aspects or specifications of the building under the Building Code of Australia. All buildings and alterations require the approval of a Construction Certificate prior to works commencing. Application forms are available from the customer services division of the Council.

Occupation Certificate required:

The buildings shall not be occupied until an Occupation Certificate for each building has been issued by the Principal Certifying Authority.

Disability Discrimination Act:

This application has been assessed under the provisions of the Environmental Planning and Assessment Act, 1979. It is the responsibility of applicants for BCA Class 3, 5, 6, 7, 8, 9 and 10a development (generally all commercial, industrial and professional offices) to make themselves aware of the provisions of the Disability Discrimination Act under which civil action may be taken if access for disabled people is denied.

Food handling/storage:

The Local Government Act and Public Health Act provide specific conditions relating to the handling and storage of food. Council's Development Division should be consulted to determine any requirements relevant to this consent.

Signs require consent:

The provisions of the Council's Planning Instrument requires development consent for most forms of advertising signs and structures. The Council has adopted a policy relating to outdoor advertising that sets out standards for various forms of advertising. Information is available from Council's Development Division.

POEO Act:

It is an offence under the provisions of the Protection of the Environment Operations Act to act in a manner causing, or likely to cause, harm to the environment. Anyone allowing material to enter a waterway or leaving material where it can be washed off-site may be subject to a penalty infringement notice (“on-the-spot fine”) or prosecution.

Fisheries Management Act (1994):
Under the Fisheries Management Act (1994) it is illegal to harm marine vegetation without prior consent from NSW Fisheries. The applicant is advised to consult with NSW Fisheries before issue of a Construction Certificate for the project.

SCHEDULE ONE

TABLE ‘A’:- EP&A ACT SECTION 94 CONTRIBUTIONS

Open Space - Acquisition - Passive 22.65 ET@ $1934 = $43,80510

- Acquisition - Active 22.65 ET@ $1280 = $28,992.00

- Embellishment – Passive 22.65 ET@ $ 927 = $20,996.55

- Embellishment – Active 22.65 ET@ $ 89 = $ 2,015.85

Community Facilities - Shire 22.65 ET@ $ 443 = $10,033.95

Community Facilities - Suffolk Park 22.65 ET@ $ 491 = $11,121.15

Road Upgrading 22.65 ET@ $ 392 = $ 8,878.80

Shire-wide Community Facility –

Council Offices – Shire 22.65 ET@ $275 = $ 6,228.75

TOTAL $132,072.15

SCHEDULE ONE

TABLE ‘B’:- WATER SUPPLY AUTHORITIES ACT 1987

SECTION 27 LEVIES

Water - 26.67 ET@ $2900 = $77,343.00

Bulk Water - 26.67 ET@ $1257 = $33,524.19

TOTAL $110,867.19

Citations

Haysom and Spender Architects v Byron Shire Council [2000] NSWLEC 274

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

1

Byron Bay Everglades Resort Pty Ltd v Byron Shire Council [2000] NSWLEC 81

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CITATION:	Haysom & Spender Architects v Byron Shire Council [2000] NSWLEC 274
PARTIES:	APPLICANT Haysom & Spender Architects RESPONDENT Byron Shire Council
FILE NUMBER(S):	10114 of 2000
CORAM:	Cowdroy J
KEY ISSUES:	Development Consent :- application for tourist facility - environmentally sensitive area - council initially opposing development - thereafter council consent to development subject to conditions - objectors’ submissions - consent granted with conditions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C(1)
CASES CITED:
DATES OF HEARING:	14/11/00, 15/11/00, 16/11/00, 23/11/00, 28/11/00, 30/11/00, 7/12/00, 18/12/00
DATE OF JUDGMENT:	12/20/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr J Webster (Barrister) SOLICITORS Halliday & Stainlay RESPONDENT Mr T Robertson (Barrister) SOLICITORS Wilshire Webb