Navaroo Constructions Pty Limited v Palerang Council

[2006] NSWLEC 182

Land and Environment Court

of New South Wales

CITATION:

Navaroo Constructions Pty Limited v Palerang Council [2006] NSWLEC 182

PARTIES:

APPLICANT
Navaroo Constructions Pty Limited

RESPONDENT
Palerang Council

FILE NUMBER(S):

10646-10650 of 2005, 10652-10654 of 2005, 10658-10661 of 2005, 10663 of 2005, 10667-10669 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Consent :- Findings for 24 separate Class 1 appeals against (Cl 2) councils deemed refusal of various s 96(2) Modification Applications to various conditions of consent for subdivisions.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1993
Yarrowlumla Local Environmental Plan 2002
Yarrowlumla Development Control Plan 2(v) Village Zone. Roads Act 1993
Community Land Development Act 1989
Section 138 of the Roads Act 1993
(Class 2 Proceedings – s 68 of Local Government Act 1993)

CASES CITED:

Connery v Manly Council [1999 ] LGERA 451;
PDP (Darlinghurst Apartments) Pty Ltd v Sydney City Council [2005] NSWLEC 41

 
DATE OF JUDGMENT: 

04/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Leggat, SC
SOLICITORS
Harris & Company

RESPONDENT
Ms H Irish, barrister
SOLICITORS
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 April 2006

10646-10650 of 2005 Navaroo Constructions v Palerang
10652-10654 of 2005 Council
10658-10661 of 2005
10663 of 2005
10667-10669 of 2005

JUDGMENT

Background

1. These proceedings initially comprised 24 separate Class 1 appeals against councils deemed refusal of various s 96(2) Modification Applications to conditions of consent imposed on alternative layouts for a 44-47 lot residential subdivision development at 70-74 Trucking Yard Road, Bungandore. Subsequent to the appeal lodgement, the council approved the modifications for 8 of the appeals, leaving 16 for determination by the Court.

2. A Class 2 appeal was also lodged against council’s refusal to issue a licence under s 68 of the Local Government Act 1993 to install, construct and operate a system for sewerage management for the development.

3. The parties agreed that all the appeals be heard concurrently.

4. The approved subdivisions generally follow the lot layout shown in the attached (Sketch AB), but more specifically refer to:

(a) Development consent No 2004 DEV/0006, dated 6 January 2005, for the subdivision of Lot 21 into five lots;

(b) Development consent no. 2004 DEV/00118 dated 6 January 2005, for the subdivision of Lots, 19, 20 and 22 into 44 lots;

(d) Development consent, no. 2004 DEV/00119 dated 6 Jan 2005, for the subdivision of Lots, 19, 20, 22 and part Lot 21 into 47 lots.

5. Following conferencing between the parties, a number of other issues were resolved, leaving the following contested issues:

· the adequacy and safety of allowing direct access from some of the new lots onto Hoskinstown Road;
· the reasonableness of imposing conditions requiring the construction of a cycle/path way from the subdivision, partway to the town centre;
· resolution of the appropriate roof catchment areas for each new dwelling, to ensure adequate water supply;

· conditions concerning the operation and management of the on-site sewerage treatment plant (STP);
· application for consent under s 138 of the Roads Act, to construct new road and infrastructure works.
· issue of a s 68 licence, pursuant to the Local Government Act 1993.

6. For the resolution of these issues, the parties agreed to the following Court-appointed experts (CAE):

· Mr D. Crane, consulting town planner, (Exhibit 12);
· Mr G. Pindar, traffic consultant, (Exhibit 13).
· Dr R. Patterson, wastewater consultant, (Exhibits16 and 17);
· Mr B. Eadie, fire consultant (Exhibit 18)

7. Other evidence was presented by:

· Mr W. Ellison, council’s director, community development (Exhibit 14);

· Dr D. Martens, wastewater consultant for the applicant, (Exhibit A, N);

· Mr J. Coady, traffic/planning consultant for the applicant (Exhibit B).

8. A number of neighbours presented both written and oral objections to the proposal and these were included in council’s bundle of documents (Exhibit 1), together with Dr Swartz’s statement (Exhibit 9).

· Yarrowlumla Local Environmental Plan 2002 (YLEP); under which the land is within the Zone No. 2(v) Village and the subdivision is permissible with consent. The objectives of this zone are as follows:

(a) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community,
(b) to recognise the natural and physical features on each village and prevent development in unsuitable areas, such as flood-prone land,
(c) to control village development so as to achieve the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets.

9. Division 2 deals with subdivision requirements. In particular, cl 22 specifies the allotments size requirements that apply to subdivisions in the Village zone. In so far as this clause prohibits new allotments of less than 2000 sq m in unsewered areas, nevertheless, cl 22 (3) provides:

Despite subclause (1), consent may be created to a subdivision of land within Zone No. 2(v) to create allotments of less than 2000 sq m, but not less than 1000 sq m, in the unsewered areas of Zone No. 2(v), but only if the consent, has had regard to a detailed analysis, including consideration of:

(a) slope,
(b) groundcover,
(c) soil permeability,
(d) transpiration factors,
(e) proximity of proposed dwellings to flow lines, and
(f) the location proposed dwellings in relation to proposed waste disposal systems and to each other …

10. Also of relevance, cl 52 deals with controls that apply to soil, water and effluent management. In particular:

cl. 52 (2) In deciding whether arrangements for drainage of stormwater and other surface water and the treatment and disposal of effluent and solid domestic waste are satisfactory, the Council must take into account whether the proposed systems can be a accomplished in a manner which meets the following objectives:

(a) economical feasibility and practicality in terms of design, installation and maintenance,
(b) protection public health,
(c) protection surface water,
(d) protection groundwater,
(e) encouragement of the utilisation of waste water as resource rather than a wastewater disposal, and
(f) protection of community .

· Yarrowlumla Development Control Plan 2(v) Village Zone.
· Roads Act 1993.
· Local Government Act 1993 .

The site

11. The subject site is situated on the southern entry road (Hoskinstown Road) to the Bungendore township and is predominantly open grazing land, through which there is a natural watercourse and dam.

The proposal

12. This proposal is generally to subdivide the existing grazing land into 44 or 47 residential allotments, with lot areas generally in the order of 1000-1200 sq m. As the existing parcel is triangular in shape, it is proposed to construct a new internal road network, with Road 1 being the principal road off Trucking Yard Lane, to which the cul-de-sac Roads 3,4, and 5 are connected. (Refer Sketch AB).

13. It is also proposed to construct a new Road 2 with a T intersection at Hoskinstown Road. This road alignment is to contain a box culvert system to collect and transfer drainage from the upslope railway land through the estate and along Hoskinstown Road to an existing culvert at the intersection of Trucking Yard Lane.

14. As the proposal is not permitted to connect to the existing town water supply or the sewage system, it is proposed to construct a stand alone treatment works (STP) on Lot Pt 1, which is to be controlled by a Community Association (Association). This Association is to be created under the provisions of the Community LandDevelopment Act 1989 to control ongoing aspects of the development, including the distribution of wastewater from the STP into designated irrigation beds on each new lot.

The evidence

15. From my consideration of the s96 modification applications, I am firstly satisfied that they relate to the same development. I am also satisfied that they have been notified and objectors given the opportunity to present their concerns, which are to be considered in terms of the merits of the various applications.

16. In summary, the concerns expressed by the residents include:

· the appropriateness and sustainability of the private STP and water cycle management system, to avoid the general community being responsible for future maintenance problems;
· whether the developer should be responsible for upgrading the existing town water sewage system;
· adequacy of water hydrants for fire protection;
· unsatisfactory vehicular accesses onto Hoskinstown Road will exacerbate traffic flow problems and increase potential traffic conflict points;
· the development should be required to provide a safe bicycle path away from Hoskinstown Road to avoid higher speed vehicles.

Vehicular access

17. The first issue I deal with concerns the appropriateness of allowing direct vehicular access from the new lots onto Hoskinstown Road. The original conditions required amendment of the subdivision layout, to prevent direct access from the 5 lot subdivision (i.e. Condition 17, DA –0006) near the intersection of Trucking Yard Lane. Also the 5 lots (i.e. Condition 51, DA – 00118) at the extreme southern end of the subdivision, which have possible alternative access from Road 3 cul-de-sac.

18. During the proceedings, the applicant accepted that all lots north of Lot 23 would have no direct access, but preferred that the southern lots 20 - 22 to maintain direct access to Hoskinstown Road.

19. The council's primary concern is that the entire frontage of the estate to Hoskinstown Road is subject to a 100km/h speed limit, which it considers unsafe for multiple vehicular access points. Mr Ellison said that this speed limit had been reviewed by the local traffic committee and a reduction in the speed limit was not supported.

20. This issue was initially assessed by the CAE, Mr Pindar. He reviewed the contents of the Statement of Environmental Effects dealing with traffic and access matters and noted that Hoskinstown Road will remain an important local road, because it provides an important regional link between Bungendore and Captains Flat, with the majority of its length having a 100km/h speed limit.

21. However, he considers it is likely that as the Village Zone expands (including as a result of the subject subdivision), the speed zoning will be progressively reduced to 50km/h. Therefore, he says it is appropriate to assess the proposal on the assumption that a 50km/h speed zoning will be applied across the entire Village Zone.

22. Accordingly he referred to various traffic models and made the following comments on aspects of the "planned" model relevant to the subject development:

23.

· Section 7 of the RTA's "Guide to Traffic Generating Development" entitled "Residential Divisions -- Traffic and Safety" states that of principle importance in the design of residential subdivisions is the need to limit the maximum speed by appropriate road design (i.e. speeds should be self- enforcing).

Comment: In this regard, Hoskinstown Road is constructed on a long and straight alignment, adjacent to the site and irrespective of the adopted speed zoning, its geometry will be conducive to relatively high traffic speeds. In these circumstances, the construction of unnecessary driveway crossings, onto this roadway is an avoidable outcome;

24.

· Section 1 of the RTA's "Guide to Traffic Generating Developments" (Guide) entitled "Policies and Issues" states as follows:

"Vehicles entering and leaving an isolated development are a potential hazard to other vehicles and to traffic flow in general, even if sight distance is good. Also, high-speed accidents in rural areas can occur where traffic enters from isolated development and where main road traffic operates at high-speed. Such conditions should be avoided."

Comment: Clearly, the provision of direct access from individual development sites to Hoskinstown Road, raises potential safety concerns irrespective of whether the proposed driveways have adequate sight distance ;

25.

· Section 1 of the Guide also states:

“Development or redevelopment of sites fronting major roads, should not extend or intensify traffic conflict. Redevelopment in particular, and in some cases new development, frequently provides an opportunity to consolidate individual sites, thereby reducing fragmented roadside activity. Site consolidation design should keep direct access to major roads at a minimum."
Comment: While there may be some argument over whether Hoskinstown Road is a major road currently, it is certainly possible that it will evolve into a major road in the future, with a sub- arterial road status, carrying traffic from one part of the region to another and relieving traffic on the Kings Highway. Accordingly, the opportunity to consolidate access through the retention of Condition 17 is highly desirable:

26.

· Comment: The concentration of traffic at formal road intersections as proposed by Council, rather than a multiplicity of driveways, results in a significant reduction in the number of conflict points. In particular, the proposed reliance on the existing intersection of Trucking Yard Lane, with Hoskinstown Road (as required under Condition 17), results in safer movements, controlled by "Give Way" signs;

27.

· Comment: Even if direct access from individual properties were to be permitted, the design should create a "uniform" road environment to enable drivers to "read" traffic conditions more easily. That is, it would be better in my opinion, to allow direct access to all lots (as presently occurs within the established village) than to allow direct access to only a few selected lots, as will occur if Condition 17 is deleted. Under the scenario sought by the applicant, the predominant visual "signal" to drivers travelling along Hoskinstown Road, will still be of a limited access road and the introduction of a few driveways, will introduce an element of "surprise" which in my view raises additional traffic concerns.

28. From this, Mr Pindar concluded that Conditions 17 and 51 should remain and that the applicant should not be permitted to have direct access to individual lots, as it would set an acceptable precedent and not be in accordance with responsible traffic management.

29. Against this, Mr Coady argued for a number of reasons that this section of Hoskinstown Road along the frontage of the site should not be considered to have the status of a major or regional road. Instead he considers its appropriate classification is a "local road". However, if such higher status were to apply, it should commence at some point south of the railway level-crossing (Goulburn- Bombala Railway Line) on Hoskinstown Road, i.e. approximately 400m south of the proposed Lot 22.

30. Mr Coady also challenged Mr Pindars reference to "planned/unplanned" models as classification descriptors of roads. He does not consider it necessary to prohibit direct access from frontage properties in this the section of Hoskinstown Road south of Trucking Yard Lane, because:

· Hoskinstown Road is currently a local road, which is unlikely to experience significant traffic growth that would warrant its upgrading to regional road status;
· Sections of this road have poor vertical and horizontal alignments and it is unsealed in places;
· There are alternative roads for through traffic;
· In the circumstances, where Hoskinstown Road, is likely to remain as a local road, adjacent to the site, it is inappropriate and incorrect to apply the access restrictions suggested by the RTA Guide for major roads.

31. Accordingly, Mr Coady considers that the proposed direct access for lots on Hoskinstown Road is satisfactory.

32. In light of these disparate positions, the traffic consultants conferred, with the following results:

· Agreement that the speed limit in Hoskinstown Road, north of the railway crossing should be reduced to 50kph, consistent with other roads located within the zoned Bungendore Village Precinct (BVP);
· Mr Pindar saying that even if the speed limit in this section is reduced to 50kph, it will not necessarily be "self-enforcing" and drivers will likely exceed the speed limit;
· Mr Coady does not consider that a 50kph speed limit would be exceeded to any greater extent than the speed limits in other roads of the BVP, particularly after residential development of the proposed subdivision and if access is provided to frontage properties;
· Mr Coady considers that the railway crossing represents a "speed hump" which limits traffic speed in the vicinity. As the proposed Lots, 20, 21 and 22 are located in the vicinity of the railway crossing, then traffic speed of this section of Hoskinstown Road will be limited;
· Whilst he doesn't consider it necessary, Mr Coady says that the construction of a roundabout at the intersection of Hoskinstown Road with subdivision Road 2 would have the effect of enforcing a 50kph speed limit on this section of the road;

33. In the ultimate, Mr Pindar as the CAE conceded that direct access to Hoskinstown Road for each of these allotments could be provided subject to:

· Reducing the speed limit in the section of Hoskinstown Road, north of the railway crossing to 50kph, or
· Constructing a roundabout in Hoskinstown Road and the intersection with subdivision Road 2.

34. It is apparent to me from the view, that this section of Hoskinstown Road is characteristic of a local road where a 100 kph speed limit applies. Even though the subject land has been designated for urban development under the Village Extension zone, no action has been taken to reduce the speed limit to that appropriate for a residential zone. Furthermore, Mr Ellison says that this proposition was considered by the local Traffic Committee and there is still not support for this speed reduction.

35. Therefore, I consider Mr Pindar’s concerns about excessive speed are justified and that it would be desirable to avoid further vehicular access points, because I do not consider the existing railway crossing acts as a sufficient "traffic slowing device", to achieve appropriate residential area speeds.

36. Insofar as the applicant made some concessions to restrict the direct access requirements of other lots, except for Lots, 20, 21 and 22, these lots are located on the southern end of the estate, near the railway crossing and in my opinion present as isolated lots. Therefore, they are exposed to any speeding drivers entering the town from the south and any southbound drivers wishing to increase speed to achieve the adjoining rural road 100kph limit. It seems to me that this is the type of situation that the RTA’s Guide seeks to avoid in respect of isolated lots having direct access onto higher speed roads.

37. I consider this undesirable situation is compounded by the proposed fencing/landscaping concept along Hoskinstown Road. This concept predominantly separates the new subdivision lots by dense planting and 1.8m solid fencing, with regular landscaping indents. This concept is consistent for the entire frontage of the subdivision and continues past the proposed lots, 20, 21 and 22, creating a clear visual impression of separation and no direct access from all the lots adjoining the road. In my assessment, this impression would be disrupted if the vehicular entry points for lots 20 - 22 are allowed. I consider this would introduce undesirable traffic hazards, considering these lots relative isolation, particularly when alternative access is possible.

38. A further concern in my assessment is that visitors to these 3 lots will be forced to park on the road shoulder, containing the sloping table-drain. Such parking would reduce sight visibility for vehicles leaving the lots and reduce safety in the event of U Turns being made to return to town, in the current 100kph speed environment. This situation is not consistent with the Guide provisions to reduce fragmented roadside activity.

39. In my assessment, I accept that the existing speed limit for this section of Hoskinstown Road is 100kph and there are no current initiatives by the local traffic authority to reduce it to a safe speed appropriate to a residential zone.

40. Under these circumstances, Mr Pindar does not support the proposed direct accesses unless a roundabout is constructed or some other traffic slowing devices installed. As these are not part of this proposal and would probably require consideration and approval by other authorities, I am satisfied to rely on Mr Pindar’s conclusion under these circumstances, that the conditions of consent requiring prohibition of direct access from relatively isolated lots onto Hoskinstown Road remain.

Footpath/Cycleway

41. The next matter appealed concerns the conditions (e.g. Condition 12; DA - 00118) requiring construction of a 2.5m wide concrete footpath/cycleway from the subdivision in Trucking Yard Lane, for a distance of approximately 330m, adjacent to the railway alignment (Majara Street) and towards the town centre. Inquiries made during the appeal confirmed that there is no strategic, LEP/DCP or s 94 Contribution Plan covering this cycle/pedestrian pathway proposal.

42. The applicant objected to these conditions as being unreasonable, submitting they should be deleted. However, Mr Leggat submitted that the applicant was prepared to enter a s 96 Developer Agreement to make a contribution towards this facility, conditional on direct access for Lots 20 – 22 to Hoskinstown Road being granted and the maximum roof area for each new dwellings water collection being limited to 250 sq m.

43. The merits of this matter were primarily assessed by the CAE, Mr Crane. Subsequently, Mr Ellison provided some further details on behalf of council and Mr Coady and Mr Pindar gave their opinions, following which these experts gave concurrent evidence.

44. According to Mr Crane's assessment, the proposed pathway adjacent to the railway alignment is unsatisfactory because pedestrians and cyclists using it will be required to negotiate a rudimentary track and gravel section of Majara Street beyond the unmade road reserve. This would generate potential safety problems for users given its isolated location adjacent to the vacant railway land and away from existing road frontages and residents, inadequate local surveillance and no available lighting at night. Instead he considers a more appropriate alignment would be along the existing Hoskinstown Road/Ellendon Street route. Therefore, he considers the condition is both inappropriate and unreasonable.

45. Mr Ellison's response to this is that the condition was imposed, pursuant to Section 80A of the EP&A Act, after council accepted a recommendation from the local Traffic Committee following its visit to the site. The basis for the condition is that the subdivisions of 44-47 lots, on current demographic trends for Bungendore (viz 2.9 persons/residences) will result in a population increase of about 130 people living on this land. Of these, about one third can be expected to be school-age children. Accordingly, he considers that a significant portion of travel movement by the residents to the town facilities will be via bicycle or walking.

46. He supports the railway alignment because it is the most direct route to the village facilities and is separated from the vehicular traffic. Furthermore, he says that lighting of the pathway is not needed in the periods when schoolchildren are going to and from school, which is expected to be a common use of the path. With regard to the missing link (approximately 1.5km) between the town facilities and the subdivision, council funds could be provided to make this trafficable.

47. Mr Ellison, supported his position by reference to the recently completed Elmslea Estate, on the northern side of town, where a concrete pathway was constructed to link the town area.

48. From the concurrent evidence, the experts agreed that it is desirable (but not essential) to provide a pathway connection from the subject estate, but disagreed on the most appropriate alignment and cost apportionment. Mr Ellison was able to somewhat hastily prepare a neighbourhood pathway plan for some 550 lots, which he estimated would require a contribution of $1060 per lot.

49. Alternatively, both Mr Crane and Mr Pindar said that the extent of this pathway plan should be reduced, resulting in a contribution of $880 per lot, based on Mr Ellisons construction cost estimates. Mr Coady undertook other calculations based on a more specific area benefiting approach, determining that a total contribution of $13,300 would be a reasonable amount, if any contribution was required at all.

50. In assessing this matter, I note again that a detailed needs study has not been undertaken for any pedestrian/cycle way, which would have allowed its inclusion in an appropriate s94 Contribution Plan. Nevertheless, the other new subdivision, Elmslea Estate does provide this facility, although it is of a much shorter length and directly connects to the existing town area. Therefore, I accept the general consensus of the planning experts that it is desirable to provide a similar level of amenity to the subject of subdivision, by way of provision of an appropriate pedestrian/bicycle access way.

51. However, I also accept Mr Crane's opinion that the proposed railway alignment is currently isolated, unlit and unsafe for the construction of the part of the access way as required by Councils conditions and has not been the subject of any community consultation.

52. Notwithstanding this, I rely on Ms Irish’s submissions that a reasonable contribution for this purpose can be required under s80 (A) (f) of the EP&A Act. In coming to this conclusion, it seems to me that the calculations undertaken by Mr Ellison are highly speculative about future development of nearby vacant land and future cost apportionment, which probably unreasonably burdens the subject development. I also have some difficulty in accepting the CAE’s contribution rate, because of the relatively arbitrary manner on which it is based on council’s estimate of cost.

53. In my opinion, it would be reasonable to modify these conditions to require a contribution, which is equivalent to and consistent with that applied to the Elmslea Estate. Such contribution could be determined by estimating the cost of the constructed pathway and dividing it by a number of lots benefited, to establish a reasonable and comparative contribution/lot. I also consider it would be reasonable for any such contribution to take into account the "missing link" situation that applies here, so that it is conditional on council providing complimentary funding to construct a pedestrian/cycle way on an alignment acceptable to the local community, within a reasonable time frame, consistent with the rate of population growth for the subject estate.

Water Cycle Management

54. Even though the subject land is zoned Village Expansion, curiously provisions have apparently not been made to allow this estate to connect to the town water and sewage system. Therefore, potable water is be obtained from roof catchments and stored in tanks on site, augmented when necessary by tanker delivery, depending on rainfall. Wastewater is to be collected and treated in the on-site sewage treatment plan (STP), which is controlled by the Association, and then returned to designated irrigation fields on each new allotment.

55. The disputed conditions (generally Conditions 20, 24, 27) concern the minimum rainwater/roof catchment area required, taking into account that councils initial conditions required a minimum roof area of not less than 250 sq m, connected to a 125 KL tank. Also, the associated aspects of the area/location of the irrigation beds and arrangements for fire protection.

56. Dr Patterson, as the CAE assessed the Statement of Environmental Effects and other details provided for the applicant and undertook modelling of local conditions to assess the adequacy of the water cycle arrangements for the proposal.

57. With regard to the minimum rainwater roof catchment area for the potable water supply, Dr Martens initially modelled this requirement for the applicant and presented his results in the Water Cycle Management Study (Study). This model utilised local, daily rainfall figures for the past 120 years and assumed a permanent occupancy of 4 persons/household, as compared with the average occupancy rate/dwelling in Bungendore town of 3 persons/household. He also assumed that potable demand would be constant at all times, excepting during prolonged drought periods, taken to be times at which storage levels were at no greater than 35% of total tank capacity. During these reduced demand periods, water consumption was assumed to be 75% of water usage during normal conditions, reflecting typical homeowner water management practices.

58. Consequently, the estimated rainwater demand is 460l/allotment/day. Dr Martens contends that on the basis of these rainfall records, the proposed 250 sq m roof area, supplemented by water tankers (14000 cu m. capacity), provides a reasonable level of security (i.e. the provision of 93% of supply in an average rainfall year) for potable water supply. In years of less than average rainfall, together with the 7 % shortfall, there may be top up requirements of 1.5 - 15 tankers/dwelling/year.

59. For his review of this issue, Dr Patterson utilised an alternative monthly decile rainfall model, to estimate the security of possible water supply above and below rainfall years, namely, the 70th and 30th decile, not the extremes. From this, he concluded that for average and above average rainfalls a combination of 250 sq m of roof catchment, 120 kL of storage and 460l/daily consumption has merit. However, with below average rainfall, the roof area is too small and failures will need the supplemented by additional water tankers.

60. Dr Patterson, also says that if consumption was to increase to 575l/household/daily (equivalent to 5 persons), then even wet years would invite failure. While it may be acceptable to average household size to 4 persons across development of 44 - 47 dwellings, there is no restriction on the size of the household that may dwell in the settlement, now or in the future. Furthermore, " any planning for rainwater collection, storage and subsequent potable use must clearly lay these planning matters to the prospective purchasers".

61. Dr Patterson disagrees with Dr Martens’ assumption that during drought periods, household water usage will generally reduce to 75% of normal water usage. Overall, he accepts the 460l/household/daily consumption, but considers a roof catchments area of 330 sq m. is preferable, which he notes still fails in drought conditions (less than 30th percentile), but overflows at average rainfall levels.

62. There was considerable cross-examination of the respective experts on this issue, and they maintained their disparate positions. In addition to this evidence, a peer review of the Study was undertaken by the NSW Department of Commerce (Exhibit 4). It considered average annual potable demand and the security of supply for different catchment options, together with other matters. The peer review concluded that the only scenario that completely supplies the probable demands over the climatic record is under a 330 sq m roof catchment and a120 kL rainwater storage tank.

63. This review also made reference to the initial security of supply analysis undertaken by Dr Martens which was considered to be based on a high-risk approach, as no allowance has been made for the impact of demand management measures or the mandating the minimum roof size. However, I accept that this could be conditioned.

64. The other essential component of this water supply is the capacity of the rainwater storage tank. After conferencing, the experts agreed that the rainwater storage tank should have a minimum volume of 120 kL, rather than the conditional 125 kL. However, there was still some uncertainty as to whether a 50mm storz fitting should required on the tank to facilitate fire fighting connection in an emergency. But following Mr Eadie’s evidence that an adequate pressurised, reticulated water supply with appropriately spaced hydrants is to be provided, then these fittings are unnecessary. In summary, I consider that conditions of consent should require a minimum rainwater storage tank capacity of 120kL and I also suggest that the storz connection be fitted as a safety precaution, considering the relatively minimal additional cost.

65. Having considered these competing positions, I make no final conclusion on which model is the most appropriate in the circumstances, because various assumptions are made. However, I am satisfied to rely on the more cautious approach of Dr Patterson, who is the CAE on this matter, that the minimum rainwater/roof catchment area should be 300 sq m and all prospective purchasers should be notified of this requirement.

66. Dr Patterson conceded that the minimum roof catchment area could be reduced from his initial 330 sq m to 300 sq m in the subject circumstances, but not reduced to Dr Martens 250 preferred sq m area. This additional 50 sq m provides increased security of potable water supplies and reduces, although not eliminates the necessity for water tanker "top ups" in certain drought periods.

67. It should also address to some extent, public interest concerns raised by existing residents about avoiding possible future demands from the development on the existing town water supply and this conclusion is more consistent with the peer review outcome.

68. It is also apparent to me that the determination of this matter allows some discretion because of the size of the proposed allotments. They are all generally well in excess of 1100 sq m, which should allow significant flexibility for the design of suitable new dwellings and other on-site service infrastructure, to incorporate the extra 50 sq m, roof area, or other suitable catchment area (i.e. the roof of the rainwater storage tank, possibly). In addition to this, I consider the public interest is well served by compliance with this requirement, because the size of future dwelling occupiers and their water demands is uncertain.

69. An associated issue raised initially concerned the identification of the effluent re-use fields on the individual lots. The original condition (mainly Condition 23), specified detailed reclaimed water reuse system design requirements, including a total field of area of not less than 175 sq m for each allotment. Also, details for the final allotment boundaries and location of building restriction precincts to be determined at the time of survey and the latter pegged on the ground prior to release of linens and secured by s 88B Instruments. This included the effluent re-use fields to be located and secured by the community management statement to effectively prevent the erection of structures or soil compaction thereon.

70. Notwithstanding that a separate appeal does not appear to have been lodged against this condition, the matter was addressed by the waste-water consultants, who agreed that the minimum size of the effluent reuse fields should be increased to 250 sq m. They also agreed that the fields could be separated into 2 individual areas, subject to the specific separation distances for these fields to property boundaries, dwelling and other items. Ms Irish expressed concerns on behalf of council regarding the practicality and enforceability of separating these fields.

71. My initial findings on this matter are to accept the agreed position of these consultants (particularly to increase the area to 250 sq m), and to allow the appropriate conditions to be modified, subject to the Court having power to do so. Mr Leggatt submits that this can be rectified by way of modifying the details in condition 27, in the absence of a specific appeal on condition 23. But I understand from Ms Irish’s submissions that there may be some problems with this because of the way the initial appeals were lodged. This needs to be resolved by the parties. Nevertheless, I deal with the proposed modifications to Condition 27 subsequently.

Fire Protection.

72. Condition 7 initially required each allotment to provide on-site water tanks, with a minimum capacity of 125 kL to include a 5000l reserve and accessed by a standard 38 to 65 mm storz fitting on the tank, enabling fire hose connection in an emergency. Also, a roof catchment area of not less than 250 sq m was required and these provisions were to be secured by way of 88 B Restrictions.

73. However, following consideration of Mr Eadie's (CAE) evidence that hydrants could be connected to the reuse water supply and located on the street to allow satisfactory pressurised hose coverage for each allotment in a fire emergency, then council agrees to delete the on-site reserve requirement. Although, it considers that the storz, fitting be retained as a precautionary measure.

74. Having heard the evidence, I accept Mr Eadie's opinion that adequate street hydrants can be installed to provide a satisfactory level of fire protection, so that the 5000l reserve is not required. However, I consider that the appropriate conditions should be detailed to require the final reused water reticulation plan to confirm the location of the hydrants, and the plan approved by council or Private Certifier.

Internal subdivision roads

75. This appeal primarily relates to Condition 52, which requires new subdivision roads to be constructed in accordance with AUSSPEC No. 1 Design Specification Series, as amended. The condition also contains the specifications for an access-way construction for the alternative access to lots 20-22.

76. As I have determined that the direct access for Lots 20-22 onto Hoskinstown Road should not be allowed in the current speed environment, therefore an alternative access way is required, if these new lots are to be created. In that event, I accept Council's condition requiring the construction of a bitumen surface laneway with adequate drainage as being reasonable. Such works to be in accordance with the provisions of AUSSPEC, which is the road design specification contained in the DCP. However the alignment of this access way needs to be determined, so the impacts on adjoining lots (particularly Lot 19 can be assessed).

Section 138 of the Roads Act 1993

77. Because the subdivision proposes create new road intersections with the existing roads and involves other drainage and infrastructure works on the existing public roads, a s 138 consent is required. A condition to this effect was imposed on the various consents (e.g. Condition 48, DA 00118). Associated conditions for construction of the stormwater drainage system i.e. Condition 54, were also imposed.

78. Accordingly, an application for the s 138 consent was made and in the absence of a decision by Council, the applicant sought to have this matter determined by the Court. The application comprised some 40 sheets of detailed engineering drawings, which were prepared by its consulting engineer and which the applicant submitted were of sufficient detail to enable all construction works to be undertaken.

79. In response to this application, Ms Irish’s submission is that no appeal was lodged for the modification or otherwise of the relevant conditions, namely 48 and 54. Therefore, this is not a matter for the Court, at least not at this stage.

80. However the applicant relies on the judgement of the Court in Connery v Manly Council [1999 ] LGERA 451 for its entitlement to make such an application to the Court. In that case it was determined that on hearing an application under section 96 of the Environmental Planning andAssessment Act 1979 to modify a development consent given by the Court, the Court has power to grant an approval under s 138 Roads Act 1993 (judgement at paragraph 23).

81. Accordingly the applicant submits that this Courts power is enlivened in the subject proceedings because the subject matter of one or more of the appeals concerns the appropriateness of the road layout and access for the subdivision and the appropriateness of the on-site water cycle management system. As His Honour Justice Cowdroy followed the line of authority that ‘matter’ be defined in expansive firms, it is submitted that the associated ‘matters’ in this case include;

(a) driveways across the public road reserve to the road pavement of Hoskins town Road and Trucking Yard Lane;
(b) the construction of the water cycle management scheme, including works in the Hoskinstown Road reserve to implement the drainage discharge into the swale on the eastern side of Hoskins town Road, associated with that scheme; and
(c) the construction of intersections of Road No 1 and Road No 2 with Trucking Yard Lane and Hoskinstown Road.

82. Insofar as I have considered Ms Irish’s submissions that no specific appeal was made against these conditions, nevertheless I consider the public interest is well served by resolving this issue. Therefore, I note that s 139 of the Roads Act provides:

139 Nature of consent
(1) A consent under this Division:

(a) may be granted on the roads authority’s initiative or on the application of any person, and

(b) may be granted generally or for a particular case, and

(c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and

(c1) in relation to integrated development within the meaning of s 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and

(d) may be granted on such conditions as the appropriate roads authority thinks fit.
(2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located:

(a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or

(b) in such other position as the roads authority may direct.
(3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.

83. Taking into account the extent of the engineering detail contained within the plans for the s 138 application, together with the “piece meal” approach to their submission during the hearing, (i.e. part engineering plans have already been privately certified) I consider that a full engineering assessment certification should be provided by Council or Private Certifier. The Court is not a design or construction authority.

84. Therefore my inclination would be to grant conditional consent to the s 138 applications subject appropriate conditions, as per s 139(1)(d). Such conditions to be prepared by council within a 7 day period, served on the applicant with 7 days for response. Then the parties could make further submissions for the resolution of this issue at which time further submissions should be made on the Court’s power to deal with, and finalise this issue.

(Class 2 Proceedings – s 68 of Local Government Act 1993)

85. This matter concerns the approval required under s 68 of the Local Government Act 1993 for designated works. In this case it involves the construction and maintenance of the water supply, sewerage and stormwater drainage works. Relevantly s 68 provides:

68 What activities, generally, require the approval of the council?

(1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under part 3 allows the activity to be carried out without that approval.

(2) This section does not apply to the carrying out of an activity specified in Part B of the following table:
(a) on land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994 , or
(b) on land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991 , or
(3) This section does not apply to the carrying out of an activity specified in item 1, 2, 3, 4, or 6 of Part B of the following Table on land within the area of operations of a water supply authority constituted under Water Management Act 2000.
Note. A person who fails to obtain an approval or who carries out an activity otherwise than in accordance an approval is guilty of an offence – see secs 626 and 627.
Table
Part B Water supply, sewerage and drainage work
1. Carry out water supply work
2. Draw water from a council water supply or a standpipe or sell water so drawn
3. Install, alter, disconnect or remove a meter connected to a service pipe
4. Carry out sewerage work
5. Carry out stormwater drainage work
6. Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer
Part C Management of waste
1. For fee or reward, transport waste over or under a public place
2. Place waste in a public place
3. Place a waste storage container in a public place
4. Dispose of waste into a sewer of the council
5. Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility
6. Operate a system of sewage management (within the meaning of s 68A)

86. This matter was the subject of a joint conference between Mr Ellison, Dr Martens and Dr Paterson dealing with the sewerage infrastructure and S.T.P. They generally agree that the amended plans provided are satisfactory. Also that the draft plan of management is adequate.

87. The draft plan of management evolved during the hearing and contains detailed construction, procedural and maintenance matters.

88. Considering the nature of the detail, the respective parties responsibilities and the requirement for further refinement of this plan of management, based on the recommendations of the Court-appointed expert Dr Martens, I consider the final format should be provided for certification by either Council or Private Certifier.

Other matters

89. In addition to the more significant servicing issues raised above, other procedural issues for the completion of the subdivision were argued. Some of these arise, out of the conditions imposed by council, whereby the applicant now seeks the Courts final approval for detailed works to allow development to proceed.

90. By reference to Consent No. "118 ", condition 23 deals with the reclaimed water re-use system design requirements as previously mentioned, and it includes the requirement that a total field area of not less than 175 sq m for each allotment be provided. In the absence of any s 96 Modification application to this condition, the applicant nevertheless agrees that this area should be increased to 250 sq m and that this can be done via modification of Condition 27, which was appealed.

91. Condition 27 deals with the contingency arrangements to address the risk of malfunction or failure of the on-site water cycle management system and includes:

(a) Configuration of the sewerage lift pump to enable possible future use of this facility to transfer the sewerage flow from the development to connect into Bungendore town sewerage system;
(b) Configuration of the effluent lift pumping system to allow ready transfer of substandard effluent (as may result from time to time) to the nearest sewer manhole sited in Ellendon Street south of King Street. This will involve:
(i) construction of an adequate sized rising main along Ellendon Street to deliver the result of effluent for peak, wet weather flow for the full development;…

92. Even though the applicant initially appealed against this condition, it now agrees to make contingency arrangements for "overload situations" to connect to the town sewer. However, no details on the feasibility of this arrangement were presented to the Court.

93. Accordingly, Mr Leggatt submits that Condition 27 be amended to incorporate the increased re-use area and the overload circumstances. However, in considering this approach, I am concerned about its relationship with Condition 23 that was not appealed. Insofar as Condition 23 requires a minimum total field area of not less than 175 sq m for each allotment and the experts now agree this re-use area should be 250 sq m, presumably compliance with 23.2 can be achieved, without modification.

94. But the other controls in condition 23 prescribe details of the water re-use area that have been subject to change. Whilst these changes may be accommodated, Condition 23.14 provides:

23.14 Prior to release of the approved linens, written clearance from the consulting engineer (Martens and Associates), certifying that the systems have been installed in accordance with his specifications is to be submitted to council.

95. Based on the evidence before the Court, my understanding is that there is to be some flexibility for other appropriate consultants to authorise the field area. Also, considering the agreed criteria that the irrigation beds can be divided into two parts, which comply with the agreed separation criteria, there is some uncertainly as to how this work will be completed prior to the linen plan issue, in the absence of detailed housing designs.

96. Having identified this potential problem, I provide my findings by reference to condition 27 below.

97. It is apparent from the evidence presented to the Court, that little strategic planning has undertaken for the village of Bungendore, which effectively addresses the economic and orderly development of the area. This is apparent because the permissible subdivision in the Village Expansion Zone is unable to have its basic water supply/wastewater system to be connected to the existing town system and also there is no strategy for vehicle access to Hoskinston Road or the provision of other basic infrastructure such as the pedestrian access/cycle way.

98. Consequently, the various conditional consents granted by council have deferred a number of s 79C matters that normally would appropriately be resolved, prior to the issue of any consent (e.g. the redesign of Lots 19, 21, 20, 22 to satisfy the restricted access). Accordingly, this approach has lead to the somewhat extraordinary situation, where some 24 separate appeals were lodged against the various conditions imposed on the respective 44 - 47 lot subdivisions.

99. In my assessment this outcome is not consistent with the approach suggested by His Honour Justice Talbot in PDP (Darlinghurst Apartments) Pty Ltd v Sydney City Council [2005] NSWLEC 41, wherein he stated; in paragraph 41 that the conditions of consent should be “to a state of specificity, order, relevance and comprehension whereby they can be readily adopted by the Court”. Likewise I consider the conditions of consent should be able to be adopted by any party who acts on the consent.

100. I am also concerned about the dubious approach to the cycleway request. Insofar as the experts agree it is desirable to provide such facility, I do not consider the Applicant’s offer to pay a considerable additional amount towards this as conditional on non-related matters is an appropriate use of the planning system.

101. Notwithstanding this, I have addressed the evidence presented, on the basis of the appeals lodged against the individual conditions. Accordingly, I have decided to present initial findings on the various issues raised because the resolution of the individual conditions affects the final outcome of the development, due to the interlocking nature of the conditions. I do this on the understanding that even if all the appeals were dismissed, the ineffectual consent still remains.

102. While some of the contested issues have been agreed by the parties, the resolution of the remaining matters on appeal still means that final orders should not be made, until further amendments are made to reflect Court’s findings on the section 96 Modifications.

Findings
a) Access;

The conditions restricting direct access to Hoskinstown Road be retained. Therefore, amended access/layout plan for Lots 20 - 22 required for merits assessment,

b) Cycle/pathway; The appeal against the original condition requiring the construction of the cycle way on the railway alignment, should be allowed and replaced with the condition requiring a reasonable contribution, based on equivalency with the Elmslea Estate,

c) Roof catchment; The conditions should be modified to require a minimum area of 300 sq m.,

d) Reclaimed

A minimum area of 250 sq m. to be provided. Such

Irrigation Fields

; area, permitted in 2 separate fields, with setback

conditions as are agreed by the expert's,

; The following detailed modifications considered reasonable, subject to reconciliation with Condition 23,

27.1 ; The "reclaimed water irrigation field" means that part of each lot having an area of not less than 250 sq m permanently set aside…

Finding - Accept in principle, subject consistency with condition 23 and appropriate procedures for its modification.

27.2 ; Notwithstanding the provisions of any other condition of this development consent, the terms of this condition shall prevail. In the event of any inconsistency between conditions, the terms of this condition shall apply.

Finding - Accept the Respondent’s Submission that the jurisdiction of the Court has to be established in order to achieve consistency with Condition 23. Prefer orderly and consistent set of conditions.

27.3; Specifies the reclaimed water irrigation field criteria for each block and who is responsible for its design, in accordance with specific performance criteria.

Finding – As above in 27.2, in addition to both parties agreement to the proposed criteria.

27.4; Design of the reclaimed water distribution system from the reclaimed water holding tank to the individual irrigation fields, to be in accordance with the Water Cycle Management Study prepared by Martens and Associates.

Finding – As above, but less restrictive, so that other appropriately qualified consultants have the opportunity to design the fields, in accordance with plans approved by council/certifier.

27.5; Details of the performance certification of the reclaimed water reuse scheme.

Finding - As above in 27.2.

27.6; Requirement to amend the community management statement to incorporate the document prepared by Martens and associates, reference number PO501082JR03-V4.

Finding - Accept council's agreement to this condition.

27.7; “The applicant shall be permitted to construct a rising main along Ellendon Street and connect it to the nearest sewer manhole sited in Ellendon Street south of King Street".

Finding - Accept council's submission that this should be rejected, because no evidence has been produced, which confirms its suitability and feasibility to satisfy the zone objectives requiring efficient use of existing utility services. This finding subject to what consideration is required by the Court to cl 52 of YLEP.

27.8; The applicant to submit a community management statement under the Community Land Development Act 1989 and Community Land Management Act on 89 , with the final subdivision plan.

Finding - Agreed on the basis of council's acceptance.

f) S138 Application

;Council to prepare and serve draft conditions in relation to s 139 Consent. Applicant to respond and parties to file final written submissions, within agreed timetable,

g) Class 2,s 68 LGA Parties to determine (and formulate) any questions of law relating to the Court's power to deal with this matter, or other matters. Otherwise, appropriate modified conditions to be filed requiring the Plan of Management to be updated to incorporate agreed engineering details, so that they can be considered and certified by Council or Private Certifier where appropriate.

h) Cl 52 YLEP On the basis that my preliminary finding is that this cl 52 is a relevant consideration, what if any, further action is required to ensure procedural fairness in dealing with Exhibits G and Q that represent the applicant’s evidence in response to this issue.

On the assumption that I do not consider the Court is bound by any preceding determination of council on this matter, do any questions of law arise which affect this Court’s determination of this matter?

103. These findings are presented to enable parties reconcile the various conditions in order to achieve a satisfactory outcome for this residential subdivision. I particularly acknowledge the assistance provided by way of the written submissions. The matter is adjourned for a period of 3 weeks i.e. until 9 May 2006, so the parties can inform the Court as to how they wish to complete the matter, in terms of the current appeals.

___________________

R Hussey
Commissioner of the Court
Rjs/ljr