S J Connelly CPP Pty Limited v Byron Bay Council (No2) - [2010] NSWLEC 1254

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: S J Connelly CPP Pty Limited v Byron Bay Council (No2) [2010] NSWLEC 1254

PARTIES:
S J Connelly CPP Pty Limited
Byron Bay Council

FILE NUMBER(S): 10710 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Staged subdivision application; concept plan; sewerage provision arrangements; ridgeline development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Coastal Protection Act 1979
State Environmental Planning Policy No. 1
State Environmental Planning Policy No. 44
State Environmental Planning Policy No. 71 - Coastal Protection
State Environmental Planning Policy No. 55 - Remediation of Land
State Environmental Planning Policy - Infrastructure
North Coast Regional Environmental Plan
Byron Local Environmental Plan 1988
Byron Development Control Plan 2002
Byron Development Control Plan No. 11

DATES OF HEARING: 8, 9, 10, 11, 12 February 2010, 28, 29, 30 April 2010, 18 and 21 May 2010, 10 September 2010

DATE OF JUDGMENT:
14 September 2010

LEGAL REPRESENTATIVES:
Mr M Young (Sol)
Solicitors
McCartney Young Lawyers
Mr A Seton (Sol)
Solicitors
Marsden Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 September 2010

Appeal No 10710 of 2009 S J Connelly CPP Pty Ltd v Byron Bay Council
JUDGMENT (No 2)

Summary.

1 This judgement follows the publishing of my original findings on 16 July 2010. Those findings included cl 31 of the BLEP being a relevant matter to be addressed in the assessment of this matter. Accordingly the parties were given the opportunity to further address this matter. This has resulted in further planning and engineering statements from the experts being submitted. A SEPP 1 objection to the provisions of this clause was also tentatively prepared.

2 As a result of these further statements, the Court was able to express its observations regarding the current state of the appeal, with particular reference to the desirability of achieving a “quick, cheap and just” resolution, which importantly results in a good community outcome.

3 This appeal is somewhat unusual because of the ‘staged development’ application, which requires the Court to initially determine the overall concept plan for this relatively large residential subdivision and then the detailed Stage 1 subdivision. This has involved the consideration of a significant amount of expert environmental and strategic planning information, which resulted in a substantial part of the land being rezoned for residential purposes.

4 Following the consideration of the extensive evidence presented in the preceding hearing, my finding were that the concept plan substantially satisfies the relevant planning criteria subject to the resolution of the cl 31 issue.

5 Clause 31 of the BLEP provides:

. "The council shall not consent to the erection of a building or the carrying out of other development on or near any ridgeline on land to which this plan applies unless no alternative location for the building or other development is available, in which case the following objectives to lessen the impact are to be considered before consent is granted:

(a) whether there will be adequate existing or proposed landscaping, trees or other vegetation which assist or are likely to assist in mitigating visual impact, and

(b) whether the proposed building design elements, materials of construction and proposed colours will mitigate potential adverse visual impact, including the reflectivity of materials to be used. "

6 The concern about cl 31 arises due to the proximity of some of the proposed lots adjacent to the unmade road along the southern boundary and the proposed alignment of the access Road 3 within the road reserve. This road reserve alignment is partially elevated, so as to potentially form part of a ridgeline.

7 Accordingly, my observations based on the further evidence is the that main forms of development on or near this ridge-line area would be:

Future residential dwellings,
Landscaping within the shelter belt,
Possible accessways.

8 I am satisfied that suitable dwellings can be built on the new lots, which are not on or near any ridgeline so as to satisfy the objective of maintaining the treed ridgeline. The merits of any such future dwelling designs can be determined at development application stage. Likewise, I am satisfied from the evidence that any development in the form of landscape planting on the ridgeline component to form the ‘shelter belt’ can be subsequently undertaken to achieve the desired outcome.

9 The remaining concerns for Mr Davidson and Mr Samuels relate to the proposed access-way within the road reserve to provide access to Lots 25 – 29. However Mr Davidson provided additional information (Sheet 6/9 LM07237-RD2 A) regarding the extent of the area he considered forms part of the ridgeline, within the road reserve,

10 Consequently the experts have again conferred and agreed to a revised subdivision layout that avoids the identified ridge area. It provides a restricted access to Lot 25, with the access to the remaining lots to be from internal roads away from the ridgeline.

Conclusions

11 Accordingly, I am satisfied that this conferencing process has assessed alternative access locations, resulting in the now agreed access location, which satisfies the requirements for cl 31. In this regard I also accept the parties agreement that it is unnecessary to consider any SEPP 1 objection regarding the provisions of cl 31.

12 This agreement then satisfies the outstanding matter identified, now allowing development consent to be granted on the basis of the agreed conditions.

Court orders

13 The Court orders that:

1. The Appeal be upheld.

2. Development Consent is granted in accordance with Part 4 Division 2A of the Environmental Planning and Assessment Act 1979 subject to the Conditions annexed and marked “Annexure A” to a staged development application that sets out concept proposals for the development of the site known as Lot 2 DP 785041 and Lots 170 and 171 DP 720411 in the document prepared by SJ Connelly CPP Pty Ltd titled “Future Stages Concept Proposals Tallowood Ridge” (dated September 2010) and a detailed proposal for the first stage of the development which comprises:

(i.) 29 residential Torrens Title lots (shown as proposed lots 1-29 on Drawing No. LM070237-SP3 Revision E Sheet 1 of 1);

(ii.) 3 public reserve lots (shown as proposed lots 31, 32 and 33 on Drawing No. LM070237-SP3 Revision E Sheet 1 of 1) to be dedicated to the Council as public reserve;

(iii.) a residue lot comprising the balance of the site;

(b) road construction works involving an extension and dedication to Council of existing Tuckeroo Avenue;

(c) tree removal and earthworks;

(d) stormwater management works;

(e) construction of that part of the new bikeway as shown on Plan 8.1 in the “Future Stages Concept Proposals Tallowood Ridge” document, dated July 2010 commencing at the western end of the proposed public road reserve extension of Tuckeroo Avenue and extending across proposed Lot 33 to the existing bikeway; and

3. Exhibits to be returned other than the plans and Future Stages Concept Plan (September 2010) filed with the Court on 13 September 2010, 1, 27, 31, 32 and BB.

R Hussey

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

S J Connelly CPP Pty Ltd -v- Byron Shire Council

Parameters of this Consent

1) General Limitations of Staged Development Consent

This consent comprises a Staged Development Consent in accordance with Part 4 Division 2A of the Environmental Planning and Assessment Act 1979. Development Consent is granted to the Concept Proposal for the site and Stage 1 of the Staged Development Application only subject to the conditions that follow. Each stage of the development that is subsequent to Stage 1 (future stages) must not commence until development consent and a Construction Certificate has been granted for that stage.

29 residential Torrens Title lots (shown as proposed lots 1-29 on Drawing No. LM070237-SP3 Revision E Sheet 1 of 1);
3 public reserve lots (shown as proposed lots 31, 32 and 33 on Drawing No. LM070237-SP3 Revision E Sheet 1 of 1) to be dedicated to the Council as public reserve;
a residue lot comprising the balance of the site.

c. tree removal and earthworks

d. stormwater management works

e. construction of that part of the new bikeway as shown on Plan 8.1 in the “Future Stages Concept Proposals Tallowood Ridge” document, dated July 2010 commencing at the western end of the proposed public road reserve extension of Tuckeroo Avenue and extending across proposed Lot 33 to the existing bikeway

f. construction of a bio-retention basin as the stormwater treatment facility, play ground and planting /restoration works on proposed Lot 33 on Drawing No. LM070237-SP3 Revision E Sheet 1 of 1.

Reference No.:	Description:	Prepared by:	Dated:
SJC01232-131	Statement of Environmental Effects and Staged Development Application (as amended by the “Future Stages Concept Proposals Tallowood Ridge” document, dated September 2010)	SJ Connelly CPP Pty Ltd	July 2009
LM070237-RD3, Rev D	Bulk Earthworks Plan and Cut and Fill Depths	Landpartners	11 September 2010
LM070237-RD4, Rev D	Proposed Lot Layout and Roadworks Plan	Landpartners	11 September 2010
LM070237-RD17, Rev A	Stormwater Treatment Bio Retention Basin Plant 0.2m Contours	Landpartners	19 June 2009
LM070237-RD18, Rev A	Stormwater Treatment Bio Retentions Basin Typical Sections	Landpartners	19 June 2009
1232-401	“Future Stages Concept Proposals Tallowood Ridge” document	SJ Connelly CPP Pty Ltd	September 2010
Exhibit 2.4 Stage 1 Subdivision Landscape Plan Version C September 2010	Stage 1 Subdivision Landscape Plan Version C	SJ Connelly CPP Pty Ltd	12 September 2010
LM070237-SP3 Revision E Sheet 1 of 1	Plan of Subdivision Stage One	LandPartners Limited	11 September 2010

While this consent remains in force the determination of any further Development Application in respect of the site to which this consent applies must not be inconsistent with this consent and the plans and documents referred to in Condition No. 3.

. Phasing of Development

Stage	Works comprised within stages as shown on Plan 6.1 – Stages Plan
1	‘Stage 1’ and ‘Stage 1 Plantings and Restoration’
2	‘Stage 2’ and ‘Stage 2 Plantings and Restoration’
3	‘Stage 3’; ‘Stage 3 Plantings and Restoration’; ‘Sports Fields’; ‘Community Centre Site’; access roads and carparking; and ‘New Bikeway’ as generally shown within Plan 8.1 – Proposed Road and Bikeway Systems of the ‘Future Stages Concept Proposals’ document.
4	‘Stage 4’ and ‘Stage 4 Plantings and Restoration’
5	‘Stage 5’ and ‘Stage 5 Plantings and Restoration’ and ‘New Bikeway’ along ridgeline to link Stage 3 with Brushbox Drive (as generally shown within Plan 8.1 – Proposed Road and Bikeway Systems of the ‘Future Stages Concept Proposals’ document)
6	‘Stage 6’; ‘Stage 6 Plantings and Restoration’; and ‘Stage 6 Flood-free gravel track to Clays Road’
7	‘Stage 7’ and ‘Stage 7 Plantings and Restoration’

(a) Plan 9.2 of the ‘Future Concept Proposals’ document is amended such that within any Stage beyond Stage 1, those allotments other than ‘MD’ lots that have been mapped as containing the land use of ‘LD/C’ (as shown on Plan 2.1) are consolidated to form ‘super lots’, being single allotments made up of four or more of the smaller lots as shown on Plan 9.2. The final number, configuration and access arrangements of smaller allotments within these ‘super lots’ will be determined as part of the detailed Development Applications for each individual stage.

(b) The ‘Flood Free Access to Clays Road’ as shown on Plan 8.1 of the ‘Future Concept Proposals’ document may be required to be upgraded to a two lane sealed road.

(c) The ‘Access to Brushbox Drive per DCP 11 Mullumbimby’ as shown on Plan 8.1 of the ‘Future Concept Proposals’ document, is limited to bike way construction only. Construction of vehicular access from the subdivision to Brushbox Drive may be considered within an alternate location (such as at the end of Brushbox Drive) as part of Stage 7.

(d) The ‘Plantings and Restoration’ areas as shown on Plan 6.1 of the ‘Future Concept Proposals’ document are to incorporate both the ‘Rehabilitation Areas’ shown within Plan 4.3 and the ‘Open Space Areas’.

for Future Stages

Development consent must not be granted to any proposed development (including allotments, roads, filling and infrastructure) within flood liable land until the flood modelling demonstrated to Council’s satisfaction that the proposed development and flood modelling takes into account the statutory provisions, Council policy and climate change parameters with respect to flooding that are applicable at the time of future individual stage development applications.

A 50 metre buffer must be maintained between the 2(a) Residential Zone and the agricultural land located to the north. A fence is to be erected and maintained 50 metres inside the 1(a) General Rural Zoned part of the land at locations as shown on Plan 2.1 Land Use Plan of the “Future Stages Concept Proposals” document as part of the development of Stage 7.

This development consent includes an Integrated Development Approval for Stage 1 only, comprising a Bush Fire Safety Authority under Section 100B of the Rural Fires Act 1997 subject to the conditions set out at the end of this consent under the heading “Terms of Integrated Development Approval”.

10. Engineering Construction Plans

(a) Full Width Road Construction

(b) Gutter Crossings

(c) Access Handle

Lot 8
Lot 12
Lots 19, 20, 21
Lots 26, 27, 28 and 29

(d) Service Conduits

(e) Street Name Signs

(Note: street / road names proposed for the subdivision must be submitted for Council approval prior to lodgement of the Subdivision Certificate application. A suitable name for any new road/s must be in accordance with Council’s adopted policy)

(f) Stripping and Stockpiling

(g) Inter-allotment Drainage

(h) On-site Stormwater Detention

The design is to include vehicle access for maintenance.

The Design must be in accordance with The Institution of Engineers, Australia (1987), Australian Rainfall and Runoff, and Council’s Design & Construction Manuals – Handbook of Stormwater Drainage Design, and Part N of Development Control Plan 2002.

(i) Stormwater Quality

(j) Access to Stormwater Structures

(k) Filling to above Flood Level

RL 7.08m. AHD

(l) Concrete Footpaths and Bikeways

The provision of that part of the new bikeway as shown on Plan 8.1 in the “Future Stages Concept Proposals Tallowood Ridge” document, dated September 2010 commencing at the western end of the proposed public road reserve extension of Tuckeroo Avenue and extending across proposed Lot 33 to the existing bikeway such bikeway to be 2.5m wide and constructed of concrete.

(m) Street lighting

Unless legislation otherwise provides, an approval is to be obtained under Section 68 of the Local Government Act 1993 to carry out water supply and sewerage works. Sewerage and water mains are to be extended to service all residential allotments in the subdivision.

NSW Department of Housing Manual (1989), Managing Urban Stormwater, Soils and Construction

A suitably experienced person must prepare the sediment and erosion control plan. Suitably experienced people include those certified by:

The Institution of Engineers, Australia, for engineering and hydrology matters.
The International Erosion Control Association for soil conservation matters.
The Australian Society of Soil Science for collection or analysis of soil data.

Traffic Control at Work Sites

Manual of Uniform Traffic Control Devices Part 3, ‘Traffic Control Devices for Works on Roads

The traffic control plan must be prepared by a suitably qualified and RTA accredited Work Site Traffic Controller.

Such plans are to be in accordance with Council’s Specification for Engineering Works and are to provide for the following works:

Left Bank Road at the intersection of Tuckeroo Avenue – Pavement linemarking and signage to provide two (2) westbound lanes and one (1) eastbound lane. This is to provide a right turn lane and a through lane. The existing sealed pavement to be widened as required to facilitate the three (3) lanes. Any pavement widening is to be on the “south” side of the existing pavement. The reconstructed intersection is to provide three lanes comparable to that at the intersections of Leftbank Road/Brushbox Drive and Leftbank Road/Tristran Parade. Flood signage and depth indicators are to be incorporated into the design.

Council's current “Northern Rivers Local Government Development Design & Construction Manuals and Standard Drawings”.
The current Australian Standards.

Such bond will be held until Council is satisfied that the infrastructure is maintained/repaired to pre development conditions and that no further work is to be carried out that may result in damage to Council’s roads, footpaths etc.

a) Stormwater treatment system and box culverts as shown on Concept Site Infrastructure Plan No. LMO70237 prepared by Landpartners P/L dated 15/07/09; and

b) Sewer, including sewer mains and associated infrastructure.

Investigations and management of ASS should be in accordance with the Acid Sulfate Soil Manual (ASSMAC, 1998).

Copy of documentation certifying that fill contained on the subject site is from a source that is clean and uncontaminated must be provided to Council prior to the issue of construction certificate for subdivision works.

Unless legislation provides otherwise an approval under Section 68 of the Local Government Act 1993 for on-site effluent disposal must be obtained from Council prior to issue of a Construction Certificate. Such approval must be issued after the date of this consent. The application for Section 68 approval must be accompanied by a report prepared by a suitably qualified professional with demonstrated experience in effluent disposal matters, which addresses the site specific design of sewage management in accordance with the requirements of the NSW Local Government Act, and Approvals Regulation and Guidelines approved by the Director General.

An approval is to be obtained under Section 68 of the Local Government Act 1993 to carry out water supply works. Water Mains are to be extended to service all residential allotments in the subdivision. The existing 200mm water main located within Tuckeroo Avenue shall be extended to service Stage 1.

Water Management Act 2000

Fisheries Management Act 1994

a) proposed location for planted shrubs and trees.

b) botanical name of shrubs and trees to be planted.

c) mature height of trees to be planted.

d) location of grassed and paved areas.

e) location of trees identified for retention in the development application plans.

f) adequate planting within the ‘shelter belt’ to alleviate adverse impacts from vehicle headlights on existing dwellings within adjoining properties upon the planting reaching maturity.

The plan is to be prepared by a landscape designer, landscape architect or ecologist who has appropriate experience and competence in landscaping.

Such plans and specifications must be prepared to the satisfaction of Council and be approved as part of the Construction Certificate.

23. Written Notification

Written notification of intention to commence works must be forwarded to the Council seven (7) days prior to work commencing. Notification is to include contact details of the supervising engineer and site contractor.

Additionally the enclosed sign, to promote the awareness of the importance of maintenance of sediment and erosion controls, is to be clearly displayed on the most prominent sediment fence or erosion control device for the duration of the project.

The approved traffic management plan is to be implemented.

Note: Council may impose on-the-spot fines for non-compliance with this condition.

All treatment and storage facilities associated with the approved Acid Sulfate Soils Management Plan must be in place prior the commencement of subdivision works.

28. Construction noise

a) For construction periods of four (4) weeks and under, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 20 dB(A).

b) For construction periods greater than four (4) weeks and not exceeding twenty-six (26) weeks, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 10 dB(A).

a) Monday to Friday, from 7 am to 6 pm.

b) Saturday, from 8 am to 1 pm.

No construction work to take place on Saturdays and Sundays adjacent to Public Holidays and Public Holidays and the Construction Industry Awarded Rostered Days Off (RDO) adjacent to Public Holidays.

Note: Council may impose on-the-spot fines for non-compliance with this condition.

All care is to be taken to manually excavate around or under any lateral structural support roots of any tree so as minimum root disturbance where services are to be laid within the dripline of a tree.

e.g. clay must not be placed over loam soil.

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

All works to be constructed to at least the minimum requirements of the “Northern Rivers Local Government Development Design & Construction Manual and Standard Drawings”.

A copy of the approved Construction Certificate including plans, details and specifications must remain at the site at all times during the construction of the subdivision.

All soil disturbance and excavation works must be carried out in accordance with the approved Acid Sulfate Soils and Water Management Plan.

All builders rubbish is to be contained on the site in a ‘Builders Skips’ or an enclosure. Footpaths, road reserves and public reserves are to be maintained clear of rubbish, building materials and all other items.

Sediment and erosion control measures must be maintained at all times until the site has been stabilised by permanent vegetation cover or hard surface.

Only clean and unpolluted water is to be discharged to Council’s stormwater drainage system or any watercourse to ensure compliance with the Protection of Environment Operations Act.

39. Subdivision Certificate application required

An application for a Subdivision Certificate must be made on the approved form. The Subdivision Certificate fees, in accordance with Council's adopted schedule of fees and charges, must accompany such application.

Seven (7) copies of the plan of subdivision, in accordance with the approved plans, are to be submitted with the application for a subdivision certificate. The location of all buildings and/or other permanent improvements including fences and internal access driveways/roads must be indicated on 1 of the copies.

a) Dedicated Public Road Access

b) Inter-allotment Drainage Easements

c) Drainage Reserve

d) Sewer Easements

e) Rights of Carriageway

f) Easement for Services

g) Easements for Electricity

h) Restricting Habitable Floor Level

RL 7.58m. AHD.

i) Building Envelope

All roads, drainage, civil works and landscaping, required by this development consent and Construction Certificate, are to be completed.

The subdivider is to supply and erect street signs for the approved street names in accordance with this Development Consent and the Construction Certificate approval.

The submission of all test certificates, owners manuals, warranties and operating instructions for civil works, mechanical and/or electrical plant, together with a certificate from a suitably qualified Engineer certifying that all works have been constructed in accordance with the approved plans and Council’s current “Northern Rivers Local Government Development Design & Construction Manuals and Specifications”.

Works-as-executed plans, being both hard copy and electronic format, certified by a suitably qualified engineer or a registered surveyor, are to be submitted with the application for a subdivision certificate. In the case where development involves filling of flood prone land, an additional copy of the works-as-executed plan relating to earthworks and final plan of subdivision must be submitted detailing the 1% flooding contour.

a) Sewerage Reticulation.

b) Stormwater Drainage.

The submission of a certificate from a registered surveyor certifying that all pipelines, structures, access driveways and/or services are located wholly within the relevant easements.

Written evidence from an electricity supply authority is to be submitted with the application for a subdivision certificate stating that satisfactory arrangements have been made for the provision of underground electricity supply throughout the subdivision.

Written evidence from Telstra is to be submitted with the application for a subdivision certificate stating that satisfactory arrangements have been made for the provision of underground telephone supply throughout the subdivision.

Payment of Section 64 developer charges to Byron Shire Council for water supply.

A copy of the Certificate of Compliance under Section 307 of the Water Management Act 2000 is to be obtained from Byron Shire Council prior to the issue of a Subdivision Certificate.

Application forms are available from Council’s administration building or online at to be submitted for a Certificate of Compliance.

The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment.

Payments will only be accepted by cash or bank cheque.

A certificate from a practicing Geotechnical Engineer must be provided in conjunction with a Lot Classification Report prepared in accordance with Australian Standard AS2870.1. Such certificate must certify that all vacant allotments have a building site of adequate size and shape on each lot that is not subject to slip or subsidence.

Specification For Engineering Works

A record of infrastructure coming into Council ownership, upon registration of the final plan of subdivision, is to be submitted to Council. The information is to be submitted in the form of Council’s Standard Form titled “Asset Creation Record”. This form is available from Council’s Local Approvals Section.

a) Finished surface levels;

b) Fill line and depth of fill.

The works engineer must certify to the Principal Certifying Authority that all works have been carried out in accordance with the approved Acid Sulfate Soils Management Plan. Documentary evidence must be provided confirming the destination of all Acid Sulfate soils removed from the site.

All of the approved landscaping works including the planting of a ‘shelter belt’, street trees and the Stage One Open Space area must be completed to the satisfaction of Council in accordance with the approved plans and documentation.

Written evidence from a suitably qualified bush fire assessment professional must be provided certifying that all requirements of the Bush Fire Safety Authority issued under Section 100B of the Rural Fires Act 1997 have been complied with.

59. Biodiversity Conservation Management Plan required for shelter belt, existing native vegetation stands and riparian zone planting

The BCMP must incorporate a landscaped open space network that links the ‘shelter belt’, ‘existing native vegetation stands’ and ‘riparian zone planting’ areas as nominated within the Plan titled “Updated Concept Plan” (Reference No. 1232-432 Amend. A), as well as unmapped native vegetation stands. The BCMP should identify areas where assisted regeneration techniques are utilised and provide strategies and methods to implement them. The BCMP should indicate the vegetation structure and floristics including planting densities for all revegetation in the shelter belt and riparian zone. A quantified monitoring program is to also to be submitted as part of the BCMP. Included in the BCMP are to be a schedule of works including timetable of implementation. It is advised that a draft BCMP be submitted to Councils Ecologist for comment.

The provisions of the approved Biodiversity Conservation Management Plan/s must be adhered to at all times.

Bush Fire Safety Authority – Section 100B of the Rural Fires Act 1997

This response is to be deemed a bush fire safety authority as required under Section 100B of the ‘Rural Fires Act 1997’ and is issued subject to the following numbered conditions:

Water and Utilities

1. Water, electricity and gas are to comply with section 4.1.3 of ‘Planning for Bushfire Protection 2006’.

2. Public road access shall comply with section 4.1.3 (1) of ‘Planning for Bush Fire Protection 2006’.

3. A perimeter road is not required in this instance.

______________________
R Hussey
Commissioner of the Court

Notes

Principal Certifying Authority:

Work must not commence until the applicant has:-

appointed a Principal Certifying Authority (if the Council is not the PCA); and
given the Council at least two days notice of the their intention to commence the erection of the building. Notice must be given by using the prescribed ‘Form 7’.
notified the Principal Certifying Authority of the Compliance with Part 6 of the Home Building Act 1989.

The following contributions are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The current contribution rates are available from Council offices during office hours. Payments will only be accepted by cash or bank cheque.

RESIDENTIAL DEVELOPMENT

SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979

(Office Use Only)

Community and Cultural Facilities
(CF-ML)

29.00

SDU @
$1,064.13
=

$30,859.65

" - Shire Wide
(CF-SW)

29.00

SDU @
$577.97
=

$16,761.21

Open Space
(OS-ML)

29.00

SDU @
$2,824.74
=

$81,917.40

" - Shire Wide
(OS-SW)

29.00

SDU @
$2,911.80
=

$84,442.11

Roads
(R-ML)

261.00

trips @
$788.41
=

$205,774.22

Cycleways
(CW-ML)

29.00

SDU @
$742.98
=

$21,546.29

Civic & Urban Improvements
(IM-ML)

29.00

SDU @
$1,520.84
=

$44,104.34

Rural Fire Service
-

=

Surf Lifesaving
(SL-ML)

29.00

SDU @
$28.34
=

$821.92

Administration
(OF-SW)

29.00

SDU @
$784.91
=

$22,762.31

Total

=

$508,989.46

A Certificate of Compliance will be issued on completion of construction of water management works to serve the development and/or on payment of developer charges for water/sewer as calculated in accordance with Byron Shire Council and Rous County Council Development Servicing Plans.

Note: Copies of the application forms for Certificates of Compliance are available on Council’s website or from Council’s Administration Office. Copies of Byron Shire Council’s Development Servicing Plans are available at Council’s Administration Office.

The following charges are indicative only. Developer charges will be calculated in accordance with the Development Servicing Plan applicable at the date of payment. A cheque must be made with Council to ascertain the current rates.

INDICATIVE CHARGES PURSUANT TO THE WATER MANAGEMENT ACT, 2000

(Office Use Only)

Water

(S64W Mull)

29.00

ET @
$8,035.78
=

$233,038

Bulk Water

=

Sewer

(S64S Other)

29.00

ET @
$9,507.75
=

$275,725

Total

=

$508,763

The civil works shall be designed and constructed in accordance with Council’s Engineering Standard current at the time of submission of Engineering Plans for approval by Council. Approval of Engineering Plans will be current for a period of two years after which time Council may require the alteration to the Engineering Design to comply with standard current at that date.

Protection of the Environment Operations Act 1997:

It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to act in a manner causing, or likely to cause, harm to the environment. Anyone allowing material to enter a waterway or leaving material where it can be washed off-site may be subject to a penalty infringement notice (“on-the-spot fine”) or prosecution.

Penalties apply for failure to comply with development consents:

Failure to comply with conditions of development consent may lead to an on the spot fine (generally $600) being issued pursuant to section 127A of the Environmental Planning & Assessment Act 1979 or prosecution pursuant to section 125 of the Environmental Planning & Assessment Act 1979.

Public Liability Insurance

The developer and/or contractor must produce evidence to the Principal Certifying Authority of public liability insurance cover for a minimum of $10 million. Council is to be nominated as an interested party on the policy.

Public safety requirements

All care is to be taken to ensure the safety of the public in general, road users, pedestrians and adjoining property. The public liability insurance cover, for a minimum of $10 million, is to be maintained for the duration of the construction of the development. Council is to be nominated as an interested party on the policy. Council is not held responsible for any negligence caused by the undertaking of the works.

REASONS for imposition of conditions

To comply with the provisions of Byron Local Environmental Plan 1988.
To ensure the potential impacts from flooding are minimised.
To ensure the development is completed in accordance with conditions of consent and approved plans.
To meet the anticipated demand for open space by residents of the development.
To provide and/or maintain an adequate drainage network that will not cause damage to existing or future development.
To ensure adequate access to and from the development.
To ensure that appropriate landscaping is provided.
To provide funds for the provision of services and facilities as required by the increased population or activity.
To ensure that the land or adjoining land is not damaged by the uncontrolled discharge of runoff from any buildings and paved areas that may be constructed on the land.
To protect vegetation.
To ensure compliance with engineering standards.
To protect the environment.
To preserve the amenity of the area.
To ensure adequacy of services to the development.
To ensure that the building is not destroyed due to coastal erosion or storm activity.
To minimise the possible adverse effects from bushfires.
To ensure public health and safety.
To ensure compliance with Section 68 of the Local Government Act 1993.
To ensure compliance with the Roads Act 1993.

APPENDIX A: CHECKLIST – Biodiversity Conservation Management Plan Framework

This checklist and associated guidelines are to be used to ensure the Biodiversity Conservation Management Plan includes all important and relevant information drawn from the range of approved documents, presented in a user-friendly and understandable document.

Name of Site and Location
Biodiversity Conservation Management Plan
Period for which Plan is Operational
Prepared by
Prepared for
Year Prepared
DA Number and if relevant Consent Condition Number

Executive Summary
Purpose of the Plan
Scope and limitations of the Plan

Contents Page

Background Information
Rationale for the Plan
Consequence of not Implementing the Plan
Aims & Objectives (specific and measurable) of the Plan

Baseline Data (can be derived from, at least in part, from initial or previous ecological assessment methods)(includes map/plan of survey locations) It may be convenient to provide the maps and plans as a separate Appendix Volume for easy of carrying in field and/or reduce bulk of larger BCMP
- Vegetation Assemblages (species richness, structure, condition)
- Threatened & other Significant Flora
- Birds
- Mammals
- Reptiles
- Frogs
- Invertebrates
- Environmental Conditions (geology, soils, landscape, water regime, noise, light etc)
Monitoring Sampling (includes map/plan of monitoring locations)¹
- Per above (or relevant subset)
- Other (noise, light, dispersal etc)
Analytical methods
Survey & monitoring limitations

Description of Location in the Landscape & catchment (includes map/plan & key)¹
Land Use (includes map/plan & key)¹
- Current and Proposed/Future Land Use
- Historic Land Use
- Adjacent Landcover/landuse
Site Characteristics (includes map/plan & key)¹
- Landform
- Geology and Soils
- Extant water regime (timing, frequency, duration, extent and depth & variability)
Description of Vegetation Assemblages, Aquatic Habitats (includes map/plan & key)¹

Vegetation
- Ecological Communities
- Flora Species
- Significant Species (includes map/plan & key)¹
Fauna
- Habitat Attributes (abundance and spatial distribution) (includes map/plan & key)¹
- Fauna Species (threatened, protected and feral)
- Significant Species (includes map/plan & key)¹
Biodiversity at the Genetic Level
Biodiversity at the Landscape Level
- Ecosystem diversity (within subject site & between subject site and study area)
- Wildlife Corridor
- Fragmentation-Isolation and Opportunities for Re-colonisation
- Proximity to National Park/Nature Reserve/State Conservation Area

Actual or Potential Threats to Biodiversity (list and then detail) NB: Can also be derived from previous assessment and/or additional issues identified by consent authority or consultants, stakeholders etc)
Baseline Information
- Ecosystem Requirements (e.g. ecological processes, fire, flooding, drying etc)
- Ecosystem/Vegetation Condition (includes map/plan & key)¹
- Species and Population Requirements (e.g. fire, flooding, shelter, shade, pollination etc)
Ecological Restoration Framework
- Ecological Restoration Strategies Applicable to Site (e.g. Natural regeneration, assisted natural regeneration, reconstruction, type conversion [fabrication] etc).
- Vegetation Assemblage/Aquatic Habitat and Ecological Restoration Strategy by Management Zones (includes map/plan & key)¹
- Ecological Restoration Objectives (Measurable) per each Vegetation Assemblage and/or Aquatic Habitat
- Fauna Habitat Attributes per Management Zone: Retain and/or Restoration and/or Reconstruction/re-introduction (includes map/plan & key)¹
- Links between ecological restoration and landscape plan (includes map/plan & key)
Weed Management (Terrestrial & Aquatic)
- Weed Species and Abundance by Management Zone (includes map/plan & key)¹
- Weed dispersal (to and from site) and management
- Noxious weeds
- Management techniques, including potential to impact on habitat values
- Monitoring and Evaluation
- Qualifications of Regenerators
- Timeframes
Habitat Reconstruction
- Planting Design by Management Zone (includes map/plan & key)¹
- Planting List
- Propagule Selection (includes rationale why and where from)
- Fauna Habitat Reconstruction (e.g. nesting boxes, woody debris, vegetation structural complexity)
- Hygiene Considerations
- Translocation of Threatened Plants (if applicable)
- Techniques, including potential to impact on habitat values
- Monitoring and Evaluation
- Qualifications of Regenerators
- Timeframes
Targeted Species Management Guidelines (including threatened, regionally or site significant species)
Landscape Plan
Fire Management
Aquatic Habitats Protection & Management
Soil Management
Human Land-use & Activity Management (if applicable)
Pest & domestic animal management (e.g. Dogs, Cats, Foxes Cane Toads, Indian Myna)

6) Implementation (including implementation timetable and budget)

Specify measurable criteria that indicate if ecological restoration objectives (stated above) are on the trajectory to being met
Specify measurable criteria indicating that the threatening processes and issues (stated above) on site are being reduced

If necessary, include spatial monitoring from source of disturbance-impact to point of no impact or other satisfactory control
details in terms of sample size and location including intensity, frequency, timing and extent (designed to determine whether disturbance-impacts are Type I (do not cause a response-change in a population), Type II (cause a temporary, long-term or permanent change in population) or catastophic (destruction of population and its habitat))
designed to minimise false change errors and missed change errors, and to detect real changes

This is to identify and clarify other additional management options if the proposed management recommendations are not effective i.e. that forethought and possible solutions have been developed. The trigger for the adaptive management are the performance criteria noted above.
It is possible that until monitoring results are produced that unexpected management issues may arise and that need corrective actions not identified above. Therefore recommendations are expected to be detailed in monitoring report and/or included in updated BCMP

1) Reporting Requirements

2) References

Appendix – Flora Species List (includes baseline data of distribution & abundance)

Appendix – Fauna Species List (includes baseline data of distribution & abundance)

Appendix – Site Recording Forms

Appendix – Weed Control Techniques (details)

Appendix – Habitat Regeneration Techniques (details)

Appendix – Habitat Restoration Techniques (details)

Actions

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Citations

S J Connelly CPP Pty Limited v Byron Bay Council (No2) [2010] NSWLEC 1254

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Cases Cited

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Statutory Material Cited

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CITATION:	S J Connelly CPP Pty Limited v Byron Bay Council (No2) [2010] NSWLEC 1254
PARTIES:	S J Connelly CPP Pty Limited Byron Bay Council
FILE NUMBER(S):	10710 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Staged subdivision application; concept plan; sewerage provision arrangements; ridgeline development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Coastal Protection Act 1979 State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 44 State Environmental Planning Policy No. 71 - Coastal Protection State Environmental Planning Policy No. 55 - Remediation of Land State Environmental Planning Policy - Infrastructure North Coast Regional Environmental Plan Byron Local Environmental Plan 1988 Byron Development Control Plan 2002 Byron Development Control Plan No. 11
DATES OF HEARING:	8, 9, 10, 11, 12 February 2010, 28, 29, 30 April 2010, 18 and 21 May 2010, 10 September 2010
DATE OF JUDGMENT:	14 September 2010
LEGAL REPRESENTATIVES:	Mr M Young (Sol) Solicitors McCartney Young Lawyers Mr A Seton (Sol) Solicitors Marsden Law Group

RESIDENTIAL DEVELOPMENT
SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979
(Office Use Only)
Community and Cultural Facilities			(CF-ML)	29.00	SDU @	$1,064.13	=	$30,859.65
" - Shire Wide			(CF-SW)	29.00	SDU @	$577.97	=	$16,761.21
Open Space			(OS-ML)	29.00	SDU @	$2,824.74	=	$81,917.40
" - Shire Wide			(OS-SW)	29.00	SDU @	$2,911.80	=	$84,442.11
Roads			(R-ML)	261.00	trips @	$788.41	=	$205,774.22
Cycleways			(CW-ML)	29.00	SDU @	$742.98	=	$21,546.29
Civic & Urban Improvements			(IM-ML)	29.00	SDU @	$1,520.84	=	$44,104.34
Rural Fire Service			-	=
Surf Lifesaving			(SL-ML)	29.00	SDU @	$28.34	=	$821.92
Administration			(OF-SW)	29.00	SDU @	$784.91	=	$22,762.31
Total	=	$508,989.46

INDICATIVE CHARGES PURSUANT TO THE WATER MANAGEMENT ACT, 2000
(Office Use Only)
Water		(S64W Mull)	29.00	ET @	$8,035.78	=	$233,038
Bulk Water		=
Sewer		(S64S Other)	29.00	ET @	$9,507.75	=	$275,725
Total	=	$508,763