Ron C Dunkley & Associates and Daleport Pty Ltd v Blue Mountains City Council - [2009] NSWLEC 1396

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Ron C Dunkley & Associates and Daleport Pty Ltd v Blue Mountains City Council [2009] NSWLEC 1396
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
FIRST APPLICANT
Ron C Dunkley & Associates
SECOND APPLICANT
Daleport Pty Ltd
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 10055 of 2009

CORAM: Murrell C - Sullivan AC

KEY ISSUES: DEVELOPMENT APPLICATION :- Community Title Subdivision: Impact on heritage item; impact on bushland; impact on existing approval and deferred commencement conditions.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blue Mountains City Council Local Environmental Plan 1991

DATES OF HEARING: 13 July 2009, 14 July 2009 and 10 August 2009

DATE OF JUDGMENT:
30 November 2009

LEGAL REPRESENTATIVES:
FIRST AND SECOND APPLICANT
Mr M Staunton (barrister)
Ms J Wauchope (solicitor)
SOLICITOR
Gadens Lawyers
RESPONDENT
Mr T Cork (solicitor)
SOLICITOR
McPhee Kelshaw

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C and Sullivan AC

30 November 2009

10055 of 2009 Ron C Dunkley & Associates and Daleport Pty Ltd v Blue Mountains City Council

JUDGMENT

1 The applicant in these proceedings is seeking a community title subdivision of the former Sorensen's nursery known as No. 8-10 Herbert Street, Leura. The community title subdivision proposes 11 lots. The dwelling house built by Sorensen’s on the land is to be retained on one lot and the nursery and former garden specimen on another lot and the dwellings on the remaining 6 lots with one dwelling per community title lot.

2 The larger lot proposed is Lot 1, the neighbourhood property lot, with an area of approximately 3 ha and will contain the main access ways within the site and the communal open space and part of this neighbourhood area will remain as natural bushland. This lot 1 is to be owned and maintained by the community body established by the subdivision of the site.

3 Lot 2 contains the area known as the ‘arboretum’ and it is proposed as a retail plant nursery. Existing on the site is a recently constructed building which is the sales building and has been completed to lock-up stage. The arboretum is an area within which the late Paul Sorensen planted specimen trees to allow customers of his nursery and landscaping business to understand how the trees that he recommended would mature. This lot is to have an area of 6900 square metres with a frontage to Herbert Street of some 51 metres.

4 Lot three is proposed to contain the Sorensen dwelling house with an area of 3730 square metres.

5 Proposed lots 4-9 are to contain the six town houses that had previously been approved for construction as stage one of the integrated development housing approved for the site. These lots have areas ranging from 360 to 503 square metres.

6 Proposed lot 10 and 11 in the subdivision plan are future development lots in stages two and three respectively of the integrated housing approved. Lot ten is proposed to have an area of 2256 square metres and lot 11, 2212 square metres.

7 The proposed community title subdivision of the subject site will require the preparation and registration of a Neighbourhood Management Statement (NMS) and a Neighbourhood Development Contract (NDC). These will regulate the future development and maintenance of the site and provide a mechanism for notifying prospective purchasers of their obligations as individual lot owners and the Neighbourhood Association.

Site and environs

8 The subject site is approximately 4.8 ha and is identified as a heritage item under the Blue Mountains City Council Local Environmental Plan 1991. The land was previously owned by the late Paul Sorensen a well-known landscape gardener. At this time the land was modified by the creation of terraces and formal landscaping and significant areas were established as a retail plant nursery. The dwelling house where the Sorensen's family resided remains on the subject site and this is to be conserved and used as a single residence, proposed as Lot 3 in the community title subdivision.

9 The Blue Mountains heritage study lists the significance of the property as “historic scientific, social and aesthetic”. The Blue Mountains State Heritage Inventory in the statement of significance provides the following:

“The Sorensen's nursery site use is of historic significance on the State level for its association with prominent landscape designer Paul Sorensen and for its association with the supply of cool climate plants to many parts of New South Wales that spanned a period for much of the 20th century ( 1920-1989)… The site is of aesthetic significance at the State level for its surviving collection of mature cool climate ornamental plants, including rare and unusual species and for its walls of local ironstone and sandstone, which demonstrate the skilled craftsmanship that Sorensen also employed in his design and construction business. Much of the design of the site relates to its function as an arboretum planted to demonstrate the mature forms of the trees sold in the nursery and the water feature complemented the potted specimens that Sorensen offered the sale.

10 In 1993 the National Trust of Australia classified the property on its register. In its recording the trust comments that:

“The site ceased operating as a nursery in 1989 and as a result much of the surviving fabric has deteriorated, particularly some of the water features. However most of the mature trees in the arboretum appear healthy there is a degree of weed infestation, particularly Blackberry. Councils DCP requires any new development on the site to conserve the significant garden and natural features. The statement of significance states that the site is important for its historical association with Paul Sorensen one of the most accomplished landscape/garden designers in Australia… its substantial and well-documented collection of mature cool climate ornamental plants, including rare and unusual species of scientific value…. its role as a source of enjoyment and stimulation for local, regional and interstate visitors is of social value.”

11 The north eastern portion of the site contains environmentally sensitive vegetation listed in Schedule 3 to the LEP. This vegetation community is known as the ‘hanging swamp’.

12 To the west of the site along Herbert Street are residential allotments and to the south of the site there are also residential allotments with dwelling houses. The existing subdivision pattern of the area and the subject site are shown on Figure 1 as an overlay on the aerial photograph.

13 Figure 2 shows the lots in the proposed community title subdivision.

Development history of the site

14 In May 1993 the site was rezoned to permit integrated housing and subdivision development, means development in the course of which a subdivision is carried out, and buildings, private and public open space, roads, pathways and landscaping are designed and structured as an entity, in accordance with the management plan that provides for the conservation of the heritage and natural attributes of the site to the satisfaction of counsel in consultation with the Heritage Council. Uses nominated were recreation facility, refreshment room, retail plant nursery but only after the consolidation of all the subject lots.

15 In March 1995 the Council issued a ‘deferred commencement’ development consent for the subject site. An operational consent was then issued in October 1997.

16 The 1997 operational consent required physical commencement within three years and this was subsequently extended by one year to October 2001. In September 2001 an application for a construction certificate was lodged for work on the Sorensen's house and the construction of the retail plant nursery and storage building. Construction works commenced thereby securing the consent.

17 An application for 20 townhouses was lodged and approved in December 2003. In November 2004 the applicant lodged three applications for construction certificates to enable the construction of the townhouses in three separate stages: stage one for the six eastern townhouses; stage two for the eight northern townhouses; and stage three for the six western townhouses.

18 In July 2005 the applicant sought a modification to the 1997 consent to permit the development of the approved 20 townhouses in three stages. The applicant also sought that the child-care centre approval for the Sorensen dwelling house be amended to allow a single dwelling. The Council approved this application in April 2006.

19 In February 2008 the current development application seeking consent for subdivision of the large parcel of land into 11 community title lots was submitted to the Council and a ‘deferred commencement’ consent was granted 1 April 2009.

20 The respondent provided a statement of contentions with the following broad headings:

1. Future management of the site.

The respondent contends that the original development consent has not been fully implemented in particular the conservation management plan and this has led to the deterioration of some of areas of the site and elements of cultural and natural significance and previously approved plans bush regeneration weed control and free maintenance with in the CMP are no longer adequate. The respondent contends that the applicant should specify the works to be completed before any plan of subdivision that the site is registered and the Court must be satisfied that the grant of development consent for the subdivision will not in danger the significant vegetation with in that the sites or the culturally significant site fabric as such the respondent considers that a deferred commencement consents or a refusal is appropriate

2. The conservation of the heritage attributes of the site.

The respondent states that developments must occur as specified in amendment for schedule 1 MEP 1991 ”in accordance with the management plan that provides that the conservation of the heritage and natural attributes of the site”

3. The conservation of the natural attributes of the sites

The respondent states that the above amendment and DCP 14 identifies significant natural attributes to be protected and restored and the CMP granted in 1997 contains specific requirements for the protection and regeneration of natural areas.

4. Adequacy of a community title (neighbourhood) scheme documentation.

The Council contends that the key documents to the management of the neighbourhood scheme are the NMS and NDC and that the draft documents are deficient including it the estimated costs in the carrying out of maintenance works and the ongoing site maintenance and whether this is the responsibility of the developer or future lot owners.

21 Following the grant of consent to the community title subdivision in April 2009 the s.97 appeal was changed to an appeal against the conditions imposed. In particular the deferred commencement conditions.

22 The applicant contends that a number of the conditions in the consent issued by the Council seek the creation of documents or the amendment of documents in relation to works which are the subject of the 1997 consent.

23 The applicant contends that there are no works proposed in the subdivision application for the community title subdivision of one lot into 11.

24 Condition 1 of the deferred commencement requires a Vegetation Management Plan to include a list of urgent priority works prior to the issue of the operational consent.

25 The deferred commencement condition 2 requires a Conservation Management Plan and the applicant contends that this should be deleted and once again the applicant contends that this requires an amendment to an already approved CMP and is not relevant to the community title subdivision application. Furthermore, the applicant contends that the condition does not relate to the development application to which permission is sought in the community subdivision.

Statutory planning framework

26 The site is zoned Residential Bushland Conservation (RES-BC) The zone objectives are:

to protect, and where practicable to improve, existing perennial and
non-perennial watercourses and the associated riparian zone; and
to protect, and where practicable to improve, water quality; and
to maintain pre-development downstream flow patterns; and
to promote ecologically sustainable water and land management practices.

27 Clause 25.3 states the Council shall not grant consent to a development application in respect of:

28 Clause 9.3 of the LEP states:

“except as otherwise provided by this plan the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council has considered the objectives of this plan and the objectives of the zone and of any protected area in which the land is situated and is of the opinion that the carrying out of the development complies with the objectives that are relevant to the development.”

29 Amendment No. 4 to the LEP is site specific and it states:

30 Amendment 4 as set out in the Schedule 1 to the LEP:

a person may with the consent of the Council carry out development of the land… despite other provisions of this plan unless inconsistent with the specific provisions of this schedule..

31 Also of relevance to the site is the Blue Mountains DCP 14.

Evidence and Submissions

32 The Council referred the subdivision proposal to the Heritage Branch of the NSW Department of Planning who commented that the proposed uses and layout of the subdivision would be compatible with the retention of the heritage significance of the site, and the branch had no objection to the subdivision proposal. However, the Branch encouraged the Council to ensure that disputes concerning past compliance matters are resolved before any new consent is issued.

33 The proposal was reviewed by the Council's consultant heritage adviser whose response was summarised in the Statement of Facts as follows:

repairs to the ironstone and sandstone walls on the eastern edge of the arboretum
the southern side of the entry driveway and around the family tree; and
installation of wire mesh fencing to secure the retail nursery area.

conservation and implementation of the aboretum area, including weed control, new and reinforcement painting, installation of name plaques and buffer hedge planting;
conservation and reconstruction of pathways and stone imaging;
planting programme to replace significant missing or removed trees in the arboretum and in other areas specified in the CMP;
new paths linking the retail nursery building;
landscaping entry to the nursery from Herbert Street
reconstruction of the ramp from the entry driveway
repair of cracked brick dam wall northern terrace garden
new covers to access kits;
adaptation of glasshouse ruin
making the slate water cascades in the front Courtyard of the house functional;

the conservation policies set out in DCP 14 and in the CMP as prepared in 2001 and
the original deferred development consent granted by the respondent in 1997

34 The Court met on site the first morning of the hearing and had the opportunity of viewing the subject site in its context.

35 A number of resident submissions were received on the proposed development application. The Court heard from Mr Hockney and he expressed concern about the dilapidated state of the arboretum that his house overlooks. He said he did not oppose the development in itself but certain restoration works needed to be carried out first.

36 Mr McMillan expressed concern about unauthorised work on the subject site and the alterations to the Sorensen's house and the dumping of rubbish in the ‘hanging swamp’. He is concerned that a number of works need to be carried out before the subdivision is approved in particular, the requirements of the Conservation Management Plan. He said that if the subdivision is approved with the arboretum in its present state set is doubtful if it will ever be restored to the glory that historically and environmentally supported the master gardener Paul Sorensen. He expressed concern about the further deterioration of the arboretum and that this needs to be addressed before the subdivision is approved.

37 On behalf of the Council evidence was given to the Court by Ms Friedewald, the environmental landscape assessment officer with the Council for some eight years. She considers that the approved Bushland Management Plan is no longer adequate because of the greater weed infestation and that there are high priority works that need to be undertaken. She also indicated that the BMP is not to the same standard as what would be required today where performance objectives would be provided. Ms Frieldwald prepared notes on the Vegetation Management Plan entitled “weed control and habitat restoration strategy for Sorensen nursery site”. This refers to the relevant conditions of consent and noxious weed control for different parts of the site and identifies those works of high to low priority.

38 The town planners that gave evidence to the Court are: Ms L. Morgan, Manager of Planning for the Council and Mr A. Darroch, a consultant planner.

39 Mr Darroch is of the opinion that the conditions on the subdivision consent have no nexus and that the decline of the site arises from the 1997 consent and that dwellings could not be occupied until there was consent for the subdivision.

40 The planners prepared joint reports and they agree that the extensive development history of the site and partial implementation of the development approval over a period of almost 8 years from commencement in October 2001 to date provides a complex development regime. They also agreed that the details of the consent is complex as the original 1997 approval for a ‘deferred commencement’ consent issued in March 1995 and there have been a number of s.96 amendments including a change to the use of the Sorensen's house from a child-care centre to a private dwelling, partial construction of the retail plant nursery sales and storage buildings plus the staging of the consent in 2005 into three parts. The development has also involved the closure of a street and other works under the Roads Act.

41 The experts agreed that:

“the 1997 consent required restoration conservation and maintenance works to the natural and built fabric of the site and while some of the work has been undertaken and satisfactorily completed, other works, most notably bushland rehabilitation and regeneration, tree maintenance and pathway construction of the arboretum and work to identify and where practical recover the original irrigation system were initiated but not maintained causing some elements of the site to deteriorate.”

42 Ms Morgan and Mr Darroch agree that, “while the built component of the first stage is substantially complete changes over time in the components of the implementation of the development approval need updating and to be satisfied, and that this in particular relates to the Bushland Management Plan and the Conservation Management Plan.”

43 The experts further agree that the subdivision application ahead of full implementation of the BMP & CMP has brought about a need for a detailed neighbourhood management statement to differentiate future responsibilities for completion and ongoing responsibilities for maintenance across the site.

44 Ms Morgan considers that the implementation of the CMP is an integral part of the application for subdivision and is fundamental to permissibility of the development for integrated housing and subdivision development as set out in the enabling clause contained in Amendment 4 to LEP 1991.

45 The applicant contends that many of the conditions imposed by the respondent on the consents should be deleted as they either have no nexus to the proposed development being the subdivision community title, serve no proper planning purpose or are unreasonable or uncertain.

46 There is no dispute that the site is in a degraded state and works need to be carried out and the applicant proposed a number of conditions to address some of Council's concerns while still allowing for an operational community title subdivision consent.

47 After we met on site the first morning we resumed to the Katoomba Court house and on the second day of the hearing, submissions on the conditions were incomplete and the Court required the respondent to mark up any proposed amendments to the applicants conditions and for the parties to make submissions where there is disagreement.

48 The applicant opposes the deferred commencement conditions proposed by the Council for the following reasons:

the subject development application is for a subdivision and proposes no physical works on the land;
the deferred commencement conditions seek to re-impose obligations that already exist under the 1997 consents:
there is no nexus between the conditions the respondent seeks to impose on the subdivision.

49 The respondent submits that to meet the requirements for the permissibility of the development enabled by Amendment 4 to the LEP, the subdivision must be carried out in accordance with a Management Plan for the conservation of the heritage and natural attributes of the site and must comprise integrated housing and subdivision development.

50 From the evidence to the Court, including Ms Morgan’s, the existing approvals envisaged a community title subdivision of the subject site.

51 The applicant submits that the development consent does not authorise any works and this is confirmed in Ms Morgan's evidence wherein she states:

“The subdivision per se does not result in direct physical impacts as the subdivision does not necessitate physical works quote within and beyond that required to satisfy the original development consents nor does it increase the development potential for the sites."

52 We do not agree that the management plans are a threshold requirement for the subdivision. The CMP and BRP have both been approved by Council following the 1997 consent, and the need for amendments to these plans are accepted by the applicant in the operational conditions. Given the existing approval of these plans by the Council, in our opinion it is unreasonable to then make them the subject of a deferred commencement condition for the subdivision.

53 We do not accept that the deferred commencement condition is warranted and a prerequisite for the permissibility of an operational consent for the proposed subdivision application. In our assessment the provisions of Amendment 4 are satisfied and the subject application with the previous consents will provide for integrated housing and subdivision as an entity. The subdivision consent will be intrinsically tied to the previously approved development with appropriate amendments and updating of the CMP and BRP and modifications to the existing consents. In our assessment the outcome is for an integrated housing and subdivision development for the subject site recognizing its heritage and natural attributes.

54 The applicant submits that the respondent through its expert Ms Morgan, freely admits that it is seeking to use deferred commencement conditions as an incentive for the applicant to remedy matters that have arisen under the 1997 consents. We agree with the applicant this is not a proper planning purpose. It was further submitted on behalf of the applicant that ”the EPA Act does not authorise conditions for the purpose of an incentive and in any event the deferred commencement condition is a penalty or disincentive rather than an incentive submitted by the respondent”.

55 From the evidence as noted above the 1997 consent anticipates community title subdivision for the subject site and we accept the applicant's submission that: “the subdivision consent will allow that the current owner or any successor in title to move forward in an orderly and economic way with the certainty of knowing what needs to be done by when and by whom with the guaranteed outcome that the subdivision can be affected upon compliance with the conditions of the relevant consents.”

56 During the proceedings the inadequacy of the approved conservation management plan and the bushland management plan were discussed and the applicant has agreed to conditions in the operational consent that facilitate these plans being revised and updated to more clearly specify and clarify necessary works to be undertaken.

57 We are satisfied that the community title subdivision contains appropriate conditions to provide certainty as to the future of the site with the proposed operational conditions. Council submits that the deferred commencement consent is to provide an incentive, however, we agree with the applicant that it could serve to be a penalty or disincentive and not one that relates to the application as such.

58 In our assessment it has always been open to the respondent to take action seeking the $50,000 bond for certain works to be undertaken. In our opinion the community title subdivision application and its assessment is not the appropriate mechanism to seek to rectify inadequacies of the previous consents. Nonetheless the applicant accepts the conditions to prepare new and amended plans (CMP and BRP) as operational conditions.

59 The parties generally agreed on the operational conditions. However. the applicant raises concern over the wording of a number. For Condition 1 the applicant submits that the council has prefaced the standard condition “to confirm and clarify the terms of the consent” and these words serve no purpose. We accept the applicant's submission and in our assessment, the additional words are unnecessary as the development is to be carried out in accordance with the plans and documentation except for where these are to be amended by the conditions.

60 Condition 2 proposed by the Council requires the applicant to modify the 1997 consent within seven days. The applicant opposes the imposition of 7 days in the condition on the basis that it fails the Newbury tests as it is not for a proper planning purpose and is unreasonable. The respondent proposed these additional words in the condition following the hearing as it was not included in the without prejudice conditions at the hearing. In our determination this condition is unwarranted and unreasonable as once the consent is taken up by the applicant the conditions will operate and the applicant is obliged to modify the 1997 consent.

61 We accept the applicant's submission that the conditions require an update and review of the CMP with an implementation schedule by an independent heritage expert and a new bushland regeneration plan (BRP) is to be prepared to replace the previously prepared BRP within 90 days of the subdivision consent being taken up.

62 The respondent’s condition for a public positive covenant, s88E Instrument, the applicant does not object to except for the words that prior to the applicant handing over the proposed association property to the Neighbourhood Association or prior to the applicant transferring any lot to individual lots purchaser. In other words the applicant should be entitled to transfer the individual lots as the developer will remain responsible for the works and will be unable to hand over to the Neighbourhood Association until they are carried out in a satisfactory way. The words “prior to the applicant transferring any lot to an individual purchaser” are deleted.

63 Council makes reference to section 109(J) of the Environmental Planning and Assessment Act in condition 2A and condition seven. We accept the applicant’s submission, and Ms Morgan’s evidence, “that the subdivision… per se does not necessitate physical works…” and reference to this section is inappropriate as the conditions require “arrangements to the reasonable satisfaction of Council to be put in place to ensure that the relevant conditions of the 1997 consent will be carried out”.

64 Condition 15 proposed by the Council requires a positive covenant/ s88E Instrument, to which the applicant does not object. However we agree with the applicant it should not apply to the individual townhouse lots because there is no fabric and plantings of heritage significance as these are on Lots 1, 2 and 3 and we note that the Neighbourhood Association is owned by Lot 1 and that all lot owners will be members of the Neighbourhood Association and in this regard the owners of the townhouse lots will have shared responsibility for compliance. We accept the applicant’s amendment to this condition.

65 A condition of consent requiring the boundary for lot 1 and lot 3 is imposed to follow the existing stone wall and this is not objected to by the applicant and indeed was also recommended by Council’s heritage consultant.

66 The conditions relating to the irrigation system are deleted as this could not be reinstated based on the evidence to the Court.

67 On behalf of the applicant it was pointed out during the proceedings “if Council had concerns about the current dilapidated state of the site it had recourse under Part 4 of the Environmental Planning and Assessment Act to take action and is not appropriate for the Council to seek to revisit what may have been in hindsight less than adequate conditions and impose them on the community title subdivision.” We agree with the applicant’s submission that the nexus for a deferred commencement does not arise. The Council had and has the opportunity to take separate action in respect of the $50,000 bond if works are not carried out. Indeed it remains that Council may still take action in the future and this is not affected by the approval for the subdivision.

68 In summary based on our assessment above development consent for the community title subdivision should be granted and we are satisfied that the operational conditions provide clarity for the restoration of the site in an orderly and economic way. In our assessment the deferred commencement conditions are unreasonable and unnecessary and do not relate to the community title subdivision.

69 In our assessment we must have regard to the reasonableness and nexus of conditions to the application before the Court for community title subdivision. In our merits assessment we have also had regard to what the ultimate outcome for the site should seek to achieve bearing in mind that the 1997 consent was issued and it is recognized by all parties and the Court that certain works must be carried out on the site to rectify neglect over the years. We are satisfied that the community title subdivision will not provide an impediment to the execution and satisfaction of the conditions of both the community title subdivision and the original 1997 consent.

70 We are most conscious of the need for the site to be conserved, however, the community title subdivision does not create an impediment to this outcome and in the circumstances of this case may facilitate same.

Orders

71 Accordingly the formal orders of the Court are:

S. Sullivan
Acting Commissioner of the Court

___________________

J S Murrell

Commissioner of the Court

Figure 1

Figure 2
Proposed Community Title Subdivision into 11 lots.

Annexure ‘A’

Conditions of Development Consent

For an 11 Lot Community Title Subdivision

Property: No. 8 Herbert Street, Leura

The development shall be carried out in accordance with the following plans prepared by Mony Chan Seng, Lean & Hayward P/L:
Plan number

Title

74331.03.L01(1)

Neighbourhood Plan Draft

74331.03.L01(2)

Sheet 2

Plan of subdivision of Lot 1 DP 867477

74331.03.L01(3)

Sheet 3

Neighbourhood Plan Draft

74331.03.L01(4)

Sheet 4

Neighbourhood Plan Draft

74331.03.L01(5)

Sheet 5

Neighbourhood Plan Draft,

and the documentation submitted with the development application, subject to any changes to the plans listed above that are required as a result of the preparation or amendment of:

(a) the Bush Regeneration Plan (BRP), to be prepared in accordance with development consent D94/0678 (D94/0678), as modified by this consent;

(b) the updated Conservation Management Plan (CMP), to be prepared in accordance with D94/0678, as modified by this consent;

(c) the updated CMP Implementation Schedule & Costing (Plan Implementation Schedule), to be prepared in accordance with D94/0678, as modified by this consent;

(d) the approved Neighbourhood Management Statement, as amended to reflect the requirements of the BRP, the CMP and the Plan Implementation Schedule, and attachments; and

(e) the approved Neighbourhood Development Contract, as amended to reflect the requirements of the BRP, the CMP and the Plan Implementation Schedule, and attachments.

Pursuant to section 80A(1)(b) of the Environmental Planning and Assessment Act 1979 development consent no. D94/0678 (D94/0678) is to be modified:
(1) To include the conditions specified in paragraphs A, B, C, D, E and F below.

A. Replacement Bush Regeneration Plan

(a) In order to restore and protect the significant natural environment from impacts arising from weed invasion, concentrated stormwater discharge, construction works and future usage of the site, a new bush regeneration plan (“BRP”) is to be prepared to replace the previously approved bushland regeneration plan, which was not sufficiently implemented to provide a basis for specifying the required work program. The BRP is to apply to the natural areas of the site (generally being Management Areas 9, 10 and 11 referred to in the Figure on page 38 of the approved Conservation Management Plan, which forms Attachment 1 to these conditions) and such other locations on the site as the weed control actions are required.

(b) The detailed BRP shall be prepared by persons with professional qualifications and/or knowledge and experience in weed control and bush regeneration/ rehabilitation practices and who are eligible for membership of the Australian Association of Bush Regenerators (AABR) and must be submitted to Council for approval within 90 days of the date upon which development consent D94/0678 was modified to include this condition. The BRP is to be approved by the Council before any work is carried out on the site in accordance with it.

(c) The BRP must be prepared in accordance with the Council’s Guidelines for the Preparation of A Vegetation Management Plan, and submitted to and approved by the Council’s Environmental/Landscape Assessment Officer or Environmental Scientist in the Environmental and Customer Services Group.

(d) The key objective of the BRP is to restore the hanging swamp and native vegetation within the Management Areas 9, 10 and 11 to a condition where spontaneous regeneration of the endemic vegetation is enabled.

(e) The BRP is to include:

details of ‘Urgent’ priority works to be completed prior to the issue of any Subdivision Certificate for the subdivision of the site;

‘High’ priority works to be completed prior to the issue of any Subdivision Certificate for the site;

‘Medium/Low’ priority works that require several seasons to achieve outcomes suitable for the transfer of remaining works to the Association as ‘Ongoing’ works, which are to be addressed in accordance with condition 7A;

‘Ongoing’ maintenance works to be transferred to the Association members and/or the individual lot owners in accordance with the Neighbourhood Management Statement as approved;

an appropriate time frame for completion of various subsequent stages of the BRP, and provide explicit detail, defined by completion of approved work schedules and by performance indicators, all of which demonstrate when the obligations to implement the BRP cease to be the obligation of the developer and instead become part of the defined ‘Ongoing’ works, suitable for transfer to the Neighbourhood Association. (Once agreed, that information will provide the basis for part of the maintenance costs levy and definition of Association obligations within the Neighbourhood Management Statement).

(f) The BRP must include, but not be limited to:

a) species identification of all noxious and environmental weeds on the site;

b) provision for any stormwater treatment devices designed to protect water quality discharging into the natural areas of the site and their management requirements;

c) a plan plotting the location, extent and species of noxious and environmental weeds identified within the total site;

d) a detailed and staged weed control strategy, including method of removal of the various weeds that prevent dispersal of the weeds;

e) a realistic timeframe for an appropriate level of weed control to be achieved on all parts of the site currently affected by the weeds;

f) an ongoing weed management regime to ensure the weed removal is continued after the release of the subdivision certificate;

g) specification of methods to promote native vegetation regeneration in those parts of the site which are cleared or degraded or weed infested and which are to be retained as natural areas; and
h) details of proposed local provenance planting to supplement the natural regeneration.

B. Updated Conservation Management Plan

An independent heritage consultant is to review and update the approved conservation management plan dated October 2001 (CMP) in accordance with current heritage practice to take into account the current condition of the site having regard to the works that have already been completed and the deterioration of the site since the grant of this consent. The review should also consider all other approvals issued in relation to the site including the nursery building, residential dwellings and tennis court and the change of use of the Sorensen dwelling from a childcare centre and tea room to a residential dwelling and appropriate placement of interpretative signage given that the Sorensen dwelling will no longer be open to the public.
In reviewing and updating the CMP the consultant should consider a consistent approach to heritage management and interpretation of the site as an entity.

In particular the updated CMP shall:

(a) note that the former “Super Six” asbestos cement roof on the Sorensen residence has been replaced with Zincalume steel roofing and that in the event the roof of the Sorensen residence is to be further replaced that it be replaced with Custom Orb which is a more suitable replacement material;

(b) investigate whether for the purpose of maintaining the heritage significance of the site the niches in the cascading water feature require further restoration by the inclusion of permanent mosaics and statues and if so the CMP and the implementation schedule part 7 shall be amended to identify those works and provide for those works to be undertaken by the developer such amendment to the CMP to be undertaken in conjunction with the amendments required by condition B; and

(c) investigate whether for the purpose of maintaining the heritage significance of the site what works if any should be undertaken to repair, interpret or record the irrigation system.

The review shall be completed and the updated CMP shall be submitted to Council for approval within 90 days of the date upon which this development consent no. D94/0678 was modified to include this condition. The updated CMP is to be approved by Council before any work is carried out on the site in accordance with it..

C. Conservation Management Plan Implementation Schedule & Costing

(a) In order to provide greater clarity and certainty regarding the extent and obligations for works to be completed by the developer and ongoing maintenance of the site which will become the obligations of the Neighbourhood Association or individual lot owners, the applicant is to prepare an updated Plan Implementation Schedule & Costing (Part 7 of the CMP) (updated Plan Implementation Schedule). The updated Plan Implementation Schedule is to be informed by the updated CMP prepared in accordance with condition B and is to be submitted to Council for approval within 90 days of the date upon which this development consent no. D94/0678 was modified to include this condition. The updated Plan Implementation Schedule is to be approved by Council before any work is carried out on the site in accordance with it.

(b) All works are to be defined in the priority categories ‘Urgent’ (works to be completed before the issue of any Subdivision Certificate for the subdivision of the site), ‘High’ (works to be completed prior to the issue of any Subdivision Certificate relating to the site), ‘Medium/Low’ (works in the approved CMP that are demonstrated to require several seasons to achieve outcomes suitable for the transfer of remaining works to the Neighbourhood Association as ‘Ongoing’ works, which are to be addressed in accordance with condition 4A of development consent S/11/2008), ‘Ongoing’ (those maintenance works to be transferred to the Association members and/or the individual lot owners in accordance with the Neighbourhood Management Statement as approved).
(c) All sections of the Implementation schedule should be updated and provisions included for:

the arrangements for public access to those parts of the site of category 1 and 2 significance( not including the interior of Sorensen’s house) under the CMP on at least one occasion per annum;

specific reference to appropriate subplans upon which the approval for the implementation schedule relies, such as BRP;

the vegetation in the Retail Nursery Area (Arboretum), the Communal open space and the Northern Terrace (being Management Areas 1, 2 and 3 respectively, shown on page 38 of the approved CMP) is to be assessed for current condition (including a separate assessment for each specimen tree) and a new schedule of works is to be provided specifying all ‘Urgent’, ‘High’, ‘Medium/Low’ works required before the arboretum can be assessed as ready to handover to the purchaser of Lot 2 and/or the Association, for ongoing maintenance. The ‘Urgent’ works must also include any further excavation, filling or any other work required to install pathways, irrigation, replacement planting and other such outstanding works that can disturb the root zone of the trees;

an updated Landscaping plan is to submitted that reflects any changes to the approved landscaping plans by way of different or additional replacement planting required as a result of the inventory of the condition of the current vegetation for the updated CMP Implementation Schedule & Costing;

an appropriate ‘Monitoring and reporting’ section should be added to the CMP implementation schedule that provides for annual reports by qualified experts (bush regeneration, horticultural, financial) on the implementation of the CMP, describing and verifying the implementation work that has occurred and outcomes achieved for each of the management areas, including those still under the control of the developer. Those reports shall also review the adequacy of the maintenance levy and any increase recommended for that levy;

Updated estimates are to be provided for the maintenance levy based upon the updated CMP schedule of ‘Ongoing’ works and for the ‘Medium/Low’ priority BRP works; and

Estimates are to be provided for the ‘Sinking Fund’ to provide for major work and capital works that will not be covered by the general maintenance levy.

(d) The CMP shall also be amended to delete the work that was required to restore the irrigation system as the Council acknowledges that this work is no longer feasible.

An Australian Association of Bushland Regenerators (AABR) approved contractor must be engaged for the purpose of weed control and bushland regeneration and the contractor’s details must be supplied to Council prior to the commencement of the approved BRP implementation.

The applicant is to arrange an onsite meting between the approved contractor and Council’s Environmental / Landscape Assessment Officer prior to commencement of the BRP implementation.

The BRP shall be implemented and maintained in accordance with the tasks, timeframes and performance targets specified in the plan to ensure a self sustaining locally endemic native vegetation community, with particular reference to the Blue Mountains Swamp community and its buffer area, is restored and maintained for the life of the development.

Weed control and supplementary restoration activities must be undertaken on the site in a systematic and effective manner to control noxious and environmental weeds on all parts of the site.

Initial weed control is to commence immediately following approval of the BRP, with follow up weed control undertaken on a regular basis to ensure eradication of mature (fruit bearing) and juvenile woody weeds, the suppression and effective control of all herbaceous noxious weeds, and the depletion of soil stored seed.

This work must coincide with supplementary activities designed to:

a. reduce continuing opportunities for weeds to establish,
b. reduce the factors promoting the weeds on site, and
c. enhance the ecological processes operating on the site.
d. ensure the successful establishment of the landscape (if appropriate).
Primary weed control is to be completed prior to occupation. Progress and compliance with the weed control requirements is to be determined by Council’s Environmental / Landscape Assessment Officer during regular inspections.

A copy of this development consent condition will also be forwarded to the Council Noxious Weeds Team, and these officers will be responsible for future and ongoing monitoring of the noxious weed control strategy following issue of the subdivision certificate.

(2) By amending:

(a) condition 7(i), by adding the following words to the existing condition:

“as updated by conditions B and C”.

(b) condition 7(ii), by adding the following words to the existing condition:

“as updated by condition A”.

The modifications to consent D94/0678 required by this condition 2 shall be effected in accordance with clause(s) 97(1) and (2) of the Environmental Planning & Assessment Regulation 2000

2. Deleted. It is agreed the consent will be for 5 years.

3. House numbering

To ensure appropriate definition of the allotments, the following house numbering shall apply to the proposed and existing lots:

Lot number
Street number

1
6 Herbert Street

2
8 Herbert Street

3
2 Herbert Street

4
14/6 Herbert Street

5
13/6 Herbert Street

6
12/6 Herbert Street

7
11/6 Herbert Street

8
10/6 Herbert Street

9
9/6 Herbert Street

10
8/6 Herbert Street
11
15 – 20/6 Herbert Street

Works to be carried out as part of the subdivision

Note First paragraph of Council’s condition 4 is deleted but second part reworded as per below.

4. Urgent and High Priority works under CMP

Prior to the issue of the Subdivision Certificate either:

(a) all ‘Urgent’ and ‘High’ priority works identified in the approved updated CMP Implementation Schedule ((Part 7 of the CMP) approved in accordance with development consent D94/0678, as modified by condition 2 above, shall be completed; or

(b) arrangements to the reasonable satisfaction of Council shall be put in place to ensure that all of the ‘Urgent’ and ‘High’ priority works identified in (a) are carried out.

4A. Medium and Low Priority Works for Implementation Under Approved CMP

Prior to the Applicant handing over the proposed Association property to the Neighbourhood Association:

(a) all “Medium” and “Low” priority works identified in the updated CMP Implementation Schedule (Part 7 of the CMP) approved in accordance with development consent D94/0678, as modified by condition 2 above, shall be completed; or

(b) arrangements to the reasonable satisfaction of the Council shall be made to ensure that all “Medium” and “Low” priority works identified in the updated CMP Implementation Schedule are carried out within the times specified in that Schedule.

5. Deleted by agreement.

6. Provision of services

To ensure all proposed allotments are appropriately serviced, the following utility services are to be provided to each lot prior to the release of the Subdivision Certificate:
a. reticulated water and gravity sewer connections;
b. underground electricity supply; and
c. underground telephone supply.

Note: Condition 7 is amended as per below

7. Urgent and High Priority Works For Implementation of the approved BRP

Prior to the issue of the Subdivision Certificate either:

(a) all ‘Urgent’ and ‘High’ priority works identified in the replacement BRP approved in accordance with development consent D94/0678, as modified by condition 2 above, shall be completed; or
(b) arrangements to the reasonable satisfaction of Council shall be put in place to ensure that all the ‘Urgent’ and ‘High’ priority works referred to in (a) are carried out.

Prior to the Applicant handing over the proposed Association property to the Neighbourhood Association:

(a) all ‘Medium’ and ‘Low’ priority works identified in the replacement BRP approved in accordance with development consent D94/0678, as modified by condition 2 above, shall be completed; or
(b) arrangements to the reasonable satisfaction of Council shall be put in place to ensure that all ‘Medium’ and ‘Low priority works identified in (a) are carried out.

8. Deleted.

Prior to issue of the Subdivision Certificate

9. Proposed as an amendment to the 1997 consent.

10. Proposed as an amendment to the 1997 consent.

11. Deleted as no works are proposed.

12. Deleted as not lawful and not reasonable.

13. Deleted as this is dealt with by new conditions.

14. Certificates from authorities

To ensure satisfactory effluent disposal and utility services are provided to all lots on the subdivision, you are required to submit to the Council compliance certificates from:
Sydney Water

A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained indicating all proposed lots are serviced by reticulated water and gravity sewer systems.The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the subdivision certificate for the development.

Application must be made through an authorised Water Servicing Coordinator. For details, see the Sydney Water web site at or telephone 132 092.

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

Integral Energy

Integral Energy indicating that satisfactory arrangements have been made for the provision of underground electricity supply to each lot in the subdivision.

Telecommunications Authority

An approved telecommunications service provider stating that satisfactory arrangements have been made for underground telephone services to each lot in the subdivision.

The compliance certificates are to be submitted to the Council prior to the issue of the Subdivision Certificate.

15. Maintenance of Lots 1, 2 & 3 Public positive covenant 88B Instrument

To ensure appropriate long term maintenance of the site is achieved to Council’s satisfaction, and to alert potential owners to their responsibilities, an instrument setting out the terms of a public positive covenant intended to be created, pursuant to Section 88E of the Conveyancing Act, 1919 is to be registered on title of lots 1, 2 & 3 and shall be submitted in a form acceptable to the Council indicating the following:

The registered proprietor is to restore (where appropriate) and maintain the fabric and plantings within their lot to the satisfaction of Blue Mountains City Council.
The covenant shall also contain a provision that it may not be extinguished or altered except by Blue Mountains City Council.
The instrument creating that covenant, to be registered with the plan of subdivision, shall be submitted with the Subdivision Certificate application to, and approved by, the Council, prior to lodgement at NSW Land and Property Information.

All conditions within the NSW Rural Fire Service general terms of approval applying to this development dated 7 May 2008, a copy of which are attached as “Annexure A” to these conditions, are to be complied with to the satisfaction of the Rural Fire Service prior to the issue of the Subdivision Certificate.

An application for a subdivision certificate is required on completion of all conditions of Development Consent. The application is to be lodged with and approved by the Council. The application is to include the original plans of subdivision, the Neighbourhood Management Statement and attachments, the Development Contract and attachments and the Section 88B Instrument, plus five (5) copies of each document.

18. Alteration to Lot 3 Boundary

The western boundary of lot 3 shall be adjusted to fall on the western side (instead of the eastern side) of the stone retaining wall so that the stone retaining wall is within Lot 3. The subdivision plan shall be amended to incorporate this amendment prior to release of the Subdivision Certificate.

19. Updated Documents

Prior to issue of the Subdivision Certificate the Applicant shall submit to the Council:

(a) a package of all documents referred to in the Neighbourhood Management Statement and in the Neighbourhood Development Contract, including any updated plans incorporating the amendments that arise from this consent or from any subsequent approvals that are granted by Council in relation to the site;

(b) the final draft Neighbourhood Management Statement, incorporating any amendments arising from or relating to the documents referred to in (a), or any documents approved by the Council in accordance with development consent D94/0678;

(c) the final draft Neighbourhood Development Contract, incorporating any amendments arising from or relating to the documents referred to in (a), or any documents approved by the Council in accordance with development consent D94/0678.

S Sullivan
Acting Commissioner of the Court

ljr

03/12/2009 - corrections and moving paragraphs around - Paragraph(s) 59-71

Actions

Download as PDF Download as Word Document

Citations

Ron C Dunkley and Associates and Daleport Pty Ltd v Blue Mountains City Council [2009] NSWLEC 1396

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

2

CITATION:	Ron C Dunkley & Associates and Daleport Pty Ltd v Blue Mountains City Council [2009] NSWLEC 1396 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	FIRST APPLICANT Ron C Dunkley & Associates SECOND APPLICANT Daleport Pty Ltd RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10055 of 2009
CORAM:	Murrell C - Sullivan AC
KEY ISSUES:	DEVELOPMENT APPLICATION :- Community Title Subdivision: Impact on heritage item; impact on bushland; impact on existing approval and deferred commencement conditions.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains City Council Local Environmental Plan 1991
DATES OF HEARING:	13 July 2009, 14 July 2009 and 10 August 2009
DATE OF JUDGMENT:	30 November 2009
LEGAL REPRESENTATIVES:	FIRST AND SECOND APPLICANT Mr M Staunton (barrister) Ms J Wauchope (solicitor) SOLICITOR Gadens Lawyers RESPONDENT Mr T Cork (solicitor) SOLICITOR McPhee Kelshaw