Smith v Wollondilly Shire Council - [2010] NSWLEC 1104

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Smith v Wollondilly Shire Council [2010] NSWLEC 1104

PARTIES:
APPLICANT
Patricia Smith
RESPONDENT
Wollondilly Shire Council

FILE NUMBER(S): 10788 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- 3 – lot rural/residential subdivision, SEPP 1 Objection to minimum lot size, weight of Draft LEP

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 – Development Standards.
Sydney Regional Plan No 20 – Hawkesbury-Nepean River (No 2 – 1997).
Draft Wollondilly LEP 2009 (DWLEP).
DCP No 36 Development in Rural Areas.
Agricultural Lands DCP.
Wollondilly Development Contributions Plan 2005

CASES CITED: Winten Property Group Ltd v North Sydney Council [2002] NSWLEC 46
Wehbe v Pittwater Council [2007] NSWLEC 827

DATES OF HEARING: 1 April 2010

DATE OF JUDGMENT:
14 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondilios (solicitor)
SOLICITOR
Maddocks Lawyers
1st RESPONDENT
Ms P Hudson (soliditor)
SOLICITOR
Marsdens Lawyers
2nd RESPONDENT
Mr P Clay (barrister)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 May 2010

10788 of 2009 Patricia Smith v Wollondilly Shire Council
JUDGMENT

Background.

1 This appeal is against council’s refusal of a development application for a 3 – lot rural/residential subdivision at 20 Durham Street, Douglass Park. The application was refused because the proposed lots are significantly below the 40ha minimum subdivision area development standard. Consequently a SEPP 1 application was lodged, which required the concurrence of the Department of Planning (DoP).

2 This concurrence was denied, resulting in the refusal of the application. However the council resolved to support the application and was excused from further involvement in the hearing. The 2nd respondent, the DoP, presented the case supporting the refusal.

3 Consequently, the contentions raised by the DoP are summarised as follows:

The site

4 The site is described as Lot 1 DP 1321 and is situated on the western side of Durham Street. It has a total area of 5.2098ha.

5 There are 2 dwelling houses erected on the substantially cleared site. The land is located on a small ridgeline and generally slopes from west to all directions. The slope to the north is at approximately 25% and the slope to the south is approximately 33%.

6 The location of the surrounding context is shown on the plan at ‘Attachment 1’. There are 21 smaller allotments that adjoin or are opposite the subject property. Each allotment contains a dwelling house and the lot sizes range from 3036.3 sq m to 1.46ha, as shown in DP 1321.

7 This land is mapped as Class 3 agricultural land.

The proposal

8 The proposed lots are:

Lot 11; with an area of 1.846ha and having frontage to Durham Street.
Lot 12; with an area of 1.839ha and access via Jenkins Street.
Lot 13; with an area of 1.523ha and access to Durham Street.

Planning controls

9 The primary control is the Wollondilly LEP 1991 (WLEP) under which the site is located within Zone No 1(a1) (Rural “A1” Zone). Clause 12 of the LEP restricts subdivisions in the 1(a1) zone unless the minimum lot size is 40ha. Also relevant is:

10 The other relevant controls are:

State Environmental Planning Policy No 1 – Development Standards.

Sydney Regional Plan No 20 – Hawkesbury-Nepean River (No 2 – 1997).

Draft Wollondilly LEP 2009 (DWLEP).

DCP No 36 Development in Rural Areas.

Agricultural Lands DCP.

Wollondilly Development Contributions Plan 2005.

11 Detailed planning evidence addressing the issues, including a joint planning report was presented by:

Mr P Goth; Regional Director Sydney West Region NSW Department of Planning, and
Mr R Lewis; Consulting planner for the applicant.

WLEP zone objectives

12 The planners discussed relevant provisions of the LEP and status of the Draft LEP in the context of the strategic planning for the area and also the adequacy of the SEPP 1 Objection to the minimum lot subdivision standard. Accordingly, the objectives of the 1(a1) rural land in the LEP are:

a) to protect the agricultural potential of rural land and to prevent fragmentation of viable rural holdings.

b) to prevent inappropriate, premature and sporadic subdivisions and to ensure consolidation of urban areas so as to enhance the prospect of economic provision of services.

c) to prevent, on the fringe of urban areas, subdivision of land into small lots which would prejudice the proper layout of additional urban areas as a result of natural growth.

d) to retain the scenic quality and overall character of the land, and

e) to encourage agricultural activities that are within the rural capability of the land.

13 Mr Goth acknowledges that the proposed lot sizes are significantly below the development standard and that this is inherently due to the size of the existing lot. But this feature of smaller lots is common with all other lots within the 1(a1) surrounding this land. Therefore he says that it is clear that the development standard for this area is inappropriate and needs to be revised, as would its underlying object or purpose.

14 Accordingly Mr Goth refers to the DoP Circular, which advises in these type of circumstances:

“If the standard is clearly inappropriate in general terms, the council should review its planning controls by means of a local environmental plan.”

15 Consequently, Mr Goth relies on the course of action taken by council in reviewing these planning controls and adopting a new subdivision standard of 2ha in the DWLEP. As the proposal does not comply with these proposed new controls, he does not support the application. Although he conceded that a 2 – lot subdivision was be acceptable.

16 Alternatively, Mr Lewis refers to the current zone objectives and says that the agricultural potential of the land is limited to the grazing of livestock. Given the proximity of existing residential development to the site, it is highly unlikely any type of intensive livestock keeping establishments would be approved if neighbourhood conflict is to be minimised. As the land is not a viable rural holding, he does not consider any agriculture option will be diminished as a result of the development and that the proposal is not inconsistent with objective (i) or the intent of the other objectives.

17 However, Mr Goth maintained his objection because he did not consider that it was sufficiently established that some form of agriculture could not occur. He speculated that either alone or in conjunction with another mutually supporting use, developments such as B & B accommodation could be possible.

Draft LEP 2009 (DWLEP)

18 The DWLEP is a matter for consideration because a s65 certificate was issued and it was exhibited from 2^nd November 2009 to 14^th December 2009. I understand from the evidence that the objections are being considered so that a report can be forwarded to the Director General.

19 This DWLEP is in the form of a comprehensive LEP, which is consistent with the Standard Instrument (LEP) Order 2006 (SILEP) template. It incorporates a number of significant features including:

To enable sustainable primary industry and other compatible land uses.
To maintain the rural and scenic character of the land.
To ensure that development does not unreasonably increase the demand for public services or public facilities.
To minimise conflict between land uses within the zone and land uses within adjoining zones.

20 Relevantly the DWLEP contains the following cl 1.8A savings provision:

“If a development application has been made before the commencement of the Plan in relation to land to which this Plan applies and the application has not been finally determined before commencement, the application must be determined as if the Plan had been exhibited but had not commenced.”

21 Accordingly, Mr Lewis acknowledges the DWLEP is a matter for consideration but does not consider it should be given determinative weight. Furthermore, he says that the cl 1.8A savings clause means that the application should be determined on the basis of the WLEP controls.

22 The planners recognised the anomaly of the 40ha development standard in the LEP and that it has now been reduced to 2ha in the DWLEP. Insofar as the DWLEP has been advertised, Mr Goth does not consider council will change the 2ha standard after the exhibition period because this standard has evolved after strategic planning across the entire LGA. Therefore he says that the DWLEP should be used as a yardstick to reliably gauge the reasonable limits of departure from the 40 ha standard, in the absence of other appropriate criteria.

23 Consequently the planning experts undertook an assessment of the following Zone RU 4 – Small Holdings zone objectives:

To enable sustainable primary industry and other compatible land uses.

To maintain the rural and scenic character of the land.

To ensure that development does not unreasonably increase the demand for public services or public facilities.

To minimise the conflict between land uses within the zone and land uses within adjoining zones…

24 Mr Lewis is satisfied the proposal demonstrates reasonable compliance with the relevant objectives. However Mr Goth disagrees and says that on the assumption that a 2 – lot subdivision would be acceptable, then whilst the additional allotment alone probably would not place unreasonable demands on public facilities, nevertheless the potential cumulative impacts of other subdivisions using this application as a precedent, may arise elsewhere.

25 In this context, the planners discussed whether the application is of state and regional significance. According to Mr Lewis, the proposed 3 – lot subdivision is within an area characterised by small lot rural subdivision and any impacts would be minor and locally confined. Even though there are some 37 other lots in the rezoning area, all of these lots are below the minimum 2ha area. Considering the proposed restrictions in the DWLEP, which includes the elimination of SEPP 1 Objections, then there is unlikely to be any precedential effect.

SEPP 1 Objection

26 The SEPP 1 Objection is made to the minimum lot size (40ha) development standard contained in cl 12(2)(a) of the WLEP 1991. The basis for the objection is that:

27 The SEPP 1 Objection follows the tests identified by Lloyd J in Winten Property Group Ltd v North Sydney Council [2002] NSWLEC 46, wherein he said:

26. In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

28 Applying these tests to the acknowledged 40 ha development standard, the SEPP 1 confirms that there is no stated objectives for the standard. Therefore the underlying objectives were derived from the zone objectives as follows:

29 The SEPP 1 details the historical use of the land from when it was subdivided off the original Douglas Park estate thereby significantly reducing its agricultural use for cattle grazing. The SEPP 1 concluded that as the land constraints now limit most agricultural activities and considering the close proximity of the rural/residential neighbours, then the application of SEPP 1 is consistent with the policy to allow flexibility and as it would not hinder the attainment of the underlying objectives of the Act, then strict compliance is unreasonable and unnecessary.

Conclusions

30 Having considered the evidence, the submissions and undertaken a view I am satisfied this development application merits conditional consent.

31 The primary question for the Court concerns the relative weight to be given to the various planning controls. My assessment is that the controls in WLEP prevail in this case over the DWLEP because I do not consider the proposed controls are certain at this stage and in any case the savings clause 1.8A would apply. Therefore it is appropriate to assess the SEPP 1. In adopting this approach, I accept that the controls in DWLEP are matters for consideration and have assessed them in the overall merit consideration.

32 The threshold matter then is whether the SEPP 1 objection to the minimum 40 ha subdivision development standard should be allowed. In this regard, I note that Mr Lewis supports the SEPP1 and approval of the development.

33 Insofar as Mr Goth does not support the SEPP 1, he acknowledges that the development standard is inappropriate and needs to be revised, along with the underlying objects and purposes. As this development standard is under provisions of WLEP, he contends that the provisions relating to the minimum subdivision size under DWLEP are now highly relevant and should be relied upon.

34 However the basic facts are that the subject land has an area of 5.2 ha and this was created in DP 1321 in 1884. Nevertheless it is not in a neighbourhood with a minimum 40 ha rural character and it appears as an ‘infill’ lot, being surrounded by and adjacent to much smaller lots that were also created in this DP, as shown in Attachment 1.

35 Accordingly for the assessment of the SEPP 1, I have considered the evidence relative to the current 1(a1) zoning of the land in the context that both planners agree the development standard is inappropriate. I am then satisfied to rely on the evidence of Mr Lewis that the objective to protect the agricultural viability of rural holdings has very limited application here due to the relatively small size of the existing lot. In the absence of any other substantive evidence, I accept Mr Lewis’ opinion that the agricultural potential is limited to the grazing of livestock.

36 However such livestock grazing, namely intensive livestock keeping establishments are permissible only with consent. I then accept the position of Mr Lewis that if an application is made for this use, there would likely be significant hurdles in satisfying other objectives for the zone, particularly to reduce the incidence of rural land use conflict likely to arise from potential impacts on the residents of the surrounding rural/residential lots. Therefore this use is unlikely to be viable.

37 In this regard, Mr Lewis then refers to the provisions of the DWLEP where “intensive livestock keeping establishments” are to be prohibited. Accordingly, this confirms his opinion that the subject land has little if any agricultural potential.

38 Whilst “Intensive horticulture” is also permitted under WLEP, I am inclined to rely on the evidence of Mr Lewis that the sloping topography is quite restrictive in achieving satisfactory ‘horticulture’ structures and activities without incurring soil erosion and runoff issues.

39 Against this, I have considered Mr Goth’s opinion that any agricultural activity may need to be undertaken in conjunction with another mutually supporting use, such as a B&B. However no compelling evidence was presented.

40 In the circumstances of this matter, I am satisfied that the agricultural potential of this land is very limited and predominantly for livestock grazing and this is unlikely to be diminished as a result of the development. Furthermore, there was no substantive evidence to show that the site is a viable rural holding.

41 The next objective is to prevent inappropriate, premature and sporadic subdivisions. However it is apparent that the DWLEP does contemplate the subdivision of this land into 2 ha lots. Consequently there is a reasonable expectation that 2 lots could be created. Reference to the ‘Wollondilly Vision 2025’ shows the subject land is to be a significant part of the westward expansion the Douglas Park urban area.

42 Insofar as Mr Goth says the approval of the development would fragment the land and not enhance the future prospect of economic serving, I do not consider this should be given such weight as to reject the application. The future planning will allow at least 2 smaller lots with minimum areas of 2 ha. In my assessment, there was no compelling evidence to demonstrate that the proposed additional rural/residential lot would interfere with servicing or orderly development of the land.

43 The next relevant objective for the Zone 1(a1) land is to prevent, on the urban fringes, subdivision of land into small lots, which would prejudice future planning of additional urban areas. In this regard, I firstly do not consider the proposal is to create small lots. The proposed lots with a minimum area of 1.52 ha are so configured that future small lot subdivision would be possible, especially taking into account the 2 road frontage of this existing corner lot. Therefore this objective is not offended.

44 Turning then to the DWELP, I accept that this draft instrument is a matter to be considered. Accordingly it supports the subdivision of the subject land into lots with minimum areas of 2 ha, which Mr Goth acknowledges.

45 In order to assess any rational basis and sensitivity of the 2 ha standard, Mr Goth was cross-examined on his reliance on this council standard. But there was no compelling explanation presented for the basis of this 2 ha control. The only explanation is contained in the council officers email of 30 April 2009, which states:

“Yes the site is proposed RU4 Small Holdings with a minimum lot size of 2 hectares. The reason for this is that the area is substantially subdivided and the proposed zoning generally just reflects the subdivision pattern already on the ground and is located directly adjoining an urban area.

This is the general approach we have taken with the DLEP with the Department’s agreement. This is the only allotment in that area which will get anything out of the rezoning – and then, should only get one additional allotment …”

46 Having reviewed the evidence before the Court, it appears to me that this basis is not well founded in the particular circumstances of this case. Reference to the immediate neighbourhood plan (Attachment 1) shows the infill location of the subject land surrounded by some 21 other established lots, all with areas of less than 1.4 ha. Accordingly, the 2 ha standard has no obvious reflection of the size of the existing subdivision pattern on the ground. In these circumstances, the relatively minor reduction in area to 1.53 ha – 1.84 ha is a marginally better reflection if that is the critical criteria.

47 Consequently, for my assessment of the SEPP 1, I have also considered the approach set out in the matter of Wehbe v Pittwater Council [2007] NSWLEC 827 where Preston CJ said:

Ways of establishing that compliance is unreasonable or unnecessary

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25] - 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]-[21].

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary: North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283. Other ways are explained in the authorities.

45 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 378-379; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5.

46 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J at p 18.

47 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70].

48 Considering the agreed position of the planners that this development standard is inappropriate because of the historical subdivision approval and that this situation is under review in the DWLEP, I am satisfied that the flexibility allowed under SEPP 1 should be exercised.

49 In doing so, I note that the intent of the DWLEP is to significantly reduce the minimum subdivision lot size. Whilst the proposed lots don’t comply with this control, no rational basis was established in my assessment. The only justification was the information in the staff email.

50 It seems to me that the more crucial and reliable evidence is that of the council’s position for the appeal indicating that it supports the application and would approve it but for the concurrence of the DoP. In these circumstances where the draft LEP has not been finalised, it appears to me that the development will substantially achieve the objectives for the area. It also appears that the DWLEP provisions for this land are then somewhat uncertain and in these circumstances would not be given determining weight.

51 Therefore I then think that it is appropriate to apply the second way of assessing the SEPP 1 (para 45) as stated in Wehbe. The underlying objective of protecting the potential of viable rural holdings is significantly comprised by the existing lots sizes in this immediate neighbourhood. I rely firstly on the planners agreement that the standard is inappropriate. I am also satisfied that this objective has been compromised by the approval of rural/residential dwellings on the smaller lots, which in my opinion is likely to thwart any viable agricultural activity because of the likely adverse impacts on the amenity of the existing residents.

52 In the ultimate, the planners agreed that the land was suitable for a 2 – lot rural/residential subdivision and I am satisfied that the incremental change arising from the additional lot is generally consistent with the draft objectives and intent of the controls for this release area.

53 Therefore I am satisfied that the underlying objective or purpose for the zone 1(a1) (Rural “A1” Zone) is not relevant to the development with the consequence that compliance is unnecessary. In doing so, I am also satisfied the public interest considerations in Part 5 of the Act are well served and that the approval of this development is consistent with the economic and orderly development of the land.

54 The Court orders that:

R Hussey

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Smith v Wollondilly Shire Council

A) Deferred Commencement Consent

This is a "Deferred Commencement" consent that is granted subject to a condition under section 80(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act") Act") that the consent is not to operate until the applicant satisfies Wollondilly Shire Council ("Council") as to the matters set out in schedule A below. The period within which the applicant must produce evidence to the Council sufficient enough to enable it to be satisfied as to those matters is 12 months.

SCHEDULE A

(i) A Wastewater Report prepared by a suitably qualified person must be submitted to Council. The Report must include calculations to demonstrate that each allotment will accommodate wastewater generated by the development and shall demonstrate that a suitable effluent management area can be provided on site within each allotment.

Conditions of Consent – Section 80(1) of EP&A Act 1979

1. COMPLIANCE

These conditions are imposed to ensure that the development is carried out in accordance with the conditions of consent and the approved plans to Council's satisfaction.

(1) Development Consent is granted for three (3) Lot Subdivision at Lot 1 DP 1321, 20 Durham Street, Douglas Park.

(2) Development shall take place in accordance with the endorsed plans 6988 A (Sheet 3 of 3) prepared by Rein Warry & Co. Consulting Surveyors and submitted in respect of Development Application No. 010.2009.00000088.001 dated 12 December 2008, except where varied by the following conditions:

(3) Works shall not commence on the site and no temporary buildings shall be placed on the site, no site excavation, filling, removal of trees or other site preparation shall be carried out prior to the issue of a Construction Certificate by the Principal Certifying Authority.

2. CONSTRUCTION GENERAL

These conditions have been imposed to ensure that all construction work is undertaken to an approved standard and related approvals.

(1) Any damage to the Council footway, road or other land shall be restored in accordance with Council's specifications prior to the issue of any Subdivision Certificate for the development.

3. ENGINEERING & CONSTRUCTION SPECIFICATIONS

These conditions have been imposed to ensure that developments within the Shire are of a standard which is both safe and acceptable to Council and members of the public:

(1) All works are to be designed and carried out in accordance with Wollondilly Shire Council's adopted Design and Construction Specification.

(2) Engineering design plans and stormwater drainage calculations, for all road and drainage construction, shall be submitted to the nominated Principal Certifying Authority. The plans must be approved prior to the issue of a Construction Certificate for any works associated with this development. All levels are to be reduced to Australian Height Datum. Road design parameters shall comply with the requirements of Council's Design Specification.

4. DRAINAGE/STORM WATER

These conditions have been imposed to ensure drainage/stormwater is appropriately managed.

(1) Stormwater runoff from and through the property is to be appropriately managed so as to control nuisance, damage and hazard during storm events.

5. CARPARKING/LOADING/ACCESS

These conditions have been imposed to:

(a) Ensure that adequate provision is made for off street parking, appropriate to the volume and turnover of traffic generated by the development

(1) A concrete piped culvert crossing shall be provided at all locations where vehicles cross the footway.

(2) The person having the benefit of this consent shall provide a reinforced concrete/asphaltic concrete/ bitumen sealed driveway from the access point for lot 12 to the existing cottage.

(3) The maximum permissible driveway grade shall be 20% (1 in 5). The maximum permissible change of grade shall be 12.5%. Any transition sections are to be a minimum of 2.0 metres.

Note: Any adjustment to services shall be at the expense of the applicant and additional to the contributions required by Council. Prior to the construction of the crossing, approval shall be obtained from Council's technical Services and Operations Division.

6. EROSION AND SEDIMENT CONTROL

These conditions have been imposed to minimise the impact of the Development on the environment and on adjoining properties.

(1) All disturbed areas are to be stabilised by turfing, mulching, paving or otherwise suitably stabilised within 30 days of completion.

(2) Vehicle access is to be controlled so as to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site has been affected by wet weather.

(3) Erosion and sediment control devices are to be installed prior to any construction activity on the site. These devices are to be maintained for the full period of construction and beyond this period where necessary.

(4) Topsoil stripped from the construction site is to be stockpiled and protected from erosion until re-used during landscaping.

7. INSPECTIONS

These conditions have been imposed to ensure that construction works are undertaken to an approved standard.

(1) The engineering works shall be inspected by the Principal Certifying Authority at the following stages of construction to ensure they comply with Council's Construction Specification and associated approvals:

Prior to commencement of any construction work on the site, after erosion and sediment control and traffic control measures are implemented.
Prior to pouring vehicle crossing slabs, when formwork and steel is in place
When driveway has been excavated to subgrade, prior to placing of pavement
At completion of pavement shaping, prior to sealing
At practical completion of works

Note: It is the responsibility of the applicant or contractor to notify the Principal Certifying Authority when inspections are required. Failure to notify may lead to additional work being required prior to issue of inspection certificates. A minimum of 24 hours notice is required for inspections where Council is the Principal Certifying Authority.

8. SERVICES

These conditions have been imposed to ensure that an adequate level of services is provided for the development:

(1) Electricity supply is to be made available to all proposed lots in accordance with the requirements of Integral Energy. In this regard, written confirmation from Integral Energy that suitable arrangements have been made shall be submitted to the Principal Certifying Authority prior to the release of the Subdivision Certificate.

(2) Provision is to be made for the supply of telephone services to all proposed lots in accordance with the requirements of Telstra. In this regard, written confirmation from Telstra Australia that arrangements have been made shall be submitted to the Principal Certifying Authority prior to the release of the Subdivision Certificate.

(3) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained.

Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Developing and Plumbing section of the web site then refer to "Water Servicing Co-ordinator" under "Developing Your Land" or telephone 13 20 92 for assistance.

Following application a "Notice of Requirements" will advise of water and sewer infrastructure 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.

A copy of Sydney Water's Notice of Requirements must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the issue of any Subdivision Certificate for the development.

9. LANDSCAPING

These conditions have been imposed to reduce the impact of any development activity on the landscape/scenic quality through vegetation works and maintenance.

(1) The development shall be undertaken in accordance with the provisions of Council's Tree Preservation Order. Under the Order a person shall not, except with the consent of Council, ringbark, cut down, top, lop or wilfully destroy any tree which:

(a) Is greater than 3m in height;
(b) Has a girth greater than 45cm at a height of 1 m from the ground; (c) Has a branch spread greater than 3m.

(2) Deleted.

10. WEED MANAGEMENT

These conditions have been imposed to ensure that noxious and environmental weeds on the subject land are appropriately managed.

(1) A Weed Eradication and Management Plan shall be prepared by a suitably qualified and experienced person(s) and shall be submitted to the Principal Certifying Authority for approval prior to the release of any Construction Certificate and shall include:

a) An inventory of all Noxious and Environmental weeds on the development site and a site plan indicating the weed infestations with reference to the species and degree of infestation (ie., low, medium, high);
b) A treatment schedule in tabulated form, specifying for each species:

i) The method of treatment (mechanical, herbicide use or cultural such as pasture improvement or grazing);
ii) The rates of application methods of all herbicide treatments;
iii) The primary control treatment to achieve a minimum 70% kill and a secondary control treatment to achieve a minimum 90% kill; and
iv) The timing of treatments.

c) An annual weed maintenance program indicating the methods to be implemented to .maintain a weed-free site;
d) Details of any methods of disposal of weed material;

(2) All preliminary weed treatment measures identified in the weed eradication and management plan shall be carried out prior to the release of the Subdivision Certificate.

11. FENCING

These conditions are imposed to ensure that any fencing has a minimal effect on the landscape/streetscape/environment of the locality:

(1) All fencing is to be installed in accordance with the provisions of Council's Fencing Policy.

12. SECTION 94 CONTRIBUTIONS

These conditions have been imposed to ensure the adequate provision of public facilities required as a result of the development.

(1) Payment of a Contribution for (1) lot in accordance with the Wollondilly Section 94 Contribution Plan 2005, the cost of which will be determined and payable at the time of the release of the Subdivision Certificate.

The current amount payable is:
(i) Open Space, Sport & Recreation (Shire) $244
(ii) Open Space, Sport & Recreation (Precinct) $5,785
(iii) Library & Community Facilities (Shire) $1,152
(iv) Library & Community Facilities (Precinct) $1,519
(v) Transport & Traffic (Roads & Intersections) $4,133
(vi) Transport & Traffic (Cycleways) $324
(vii) Bushfire Protection $29
(viii) Plan Administration $659
TOTAL $13,845

These figures are reviewed quarterly in accordance with the provisions of the Contributions Plan and an updated figure must be obtained from Council at the time of payment.

13. SUBDIVISION PLANS

These conditions have been imposed:

(a) To outline the minimum development standards and provide design guidelines for the subdivision of land in the Shire.

(b) To outline Council's requirements on work standards for the construction of land subdivision:

(1) A letter from a Registered Surveyor shall be submitted to Council certifying that no services of Public Utility or waste water disposal presently connected to existing buildings straddle proposed boundaries after subdivision.

(2) Submission to Council of the Linen Plan of Subdivision together with nine (9) copies suitable for certification by the General Manager and lodgement at the Lands Titles Office. A fee for the release of the Subdivision Certificate applies.

(3) The development shall be completed in accordance with the relevant plans and conditions of consent prior to the release of the Subdivision Certificate.

(4) Existing easements, natural watercourses and dams are to be marked on the Linen Plan of Subdivision.

(5) The development shall be completed in accordance with the relevant plans and conditions of consent relevant to each stage of the development prior to the release of the Subdivision Certificate for that stage.

(6) Submission of the appropriate instruments under the Conveyancing Act (eg. Section 88B) with the linen plan to create the following restrictions as to User on the lots and responsibilities on future owners:

· Prohibiting the disposal of treated or untreated sewage or septic tank effluent on, in or under land within 40 metres of a gully, drainage depression and/or a watercourse on the allotment.

· The erection of dwellings on proposed Lots 12 and 13 will require the installation of an on-site sewerage management system in accordance with the recommendations contained within the report submitted with respect to the deferred commencement condition or to an equivalent or superior standard. The plan of subdivision and Section 88B Instrument shall establish a suitable positive covenant to give effect to this requirement. Council is to be nominated as having the benefit of the covenant and the sole authority to release, vary or modify the covenant.

14. PRESCRIBED CONDITIONS UNDER THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979

These conditions are imposed as they are mandatory under the Act.

(1) SIGNS TO BE ERECTED ON BUILDING, SUBDIVISION AND DEMOLITION SITES

(1) In accordance with Section 80A (11) of the Environmental Planning & Assessment Act, 1979, a sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(a) Showing the name, address and telephone number of the Principal Certifying Authority for the work; and
(b) Showing the name of the Principal Contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours; and
(c) Stating that unauthorised entry to the work site is prohibited.

(2) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
(3) This Clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.

15. MISCELLANEOUS CONDITIONS

a) At all times work is being undertaken within the public road, adequate precautions shall be taken to warn, instruct and guide road users safely around the work site with a minimum of disruption.

b) During the course of construction, care must be taken to prevent damage to any public utility or other service and the applicant will be held responsible for any damage caused by him or his agents, either directly or indirectly. Any mains, services, poles, surface fittings etc., that require alterations shall be altered at the applicants expense and to the satisfaction of Council and the authority concerned.

c) The developer and any contractor or sub-contractor used to carry out any work authorised by or out of this approval on Council owned or controlled land, is to carry the following insurance, copies of which are to be produced to Council upon request:

Motor Vehicle Insurance (comprehensive or property damage) for all self propelled plant, as well as valid registration or RTA permit (Including CTP insurance). Primary producer's registration is not registration for use on Public Road construction work.

Workers Compensation Insurance.

Ten Million Dollar Public Liability Insurance.

d) The following service providers should be contacted before commencement of construction to establish their requirements:

Telstra (telephone) 1 800 768 396

Integral Energy (electricity) 131 002

AGL (gas) 131 245

Sydney Water (water & sewer) 132 092

e) This Consent does not permit the commencement of construction unless a Construction Certificate has been issued. For details about obtaining a Construction Certificate contact Council's Development Services Section.

________________________
R Hussey
Commissioner of the Court

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Citations

Smith v Wollondilly Shire Council [2010] NSWLEC 1104

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

7

Joyce v Ku-Ring-Gai Council [2002] NSWLEC 46

Wehbe v Pittwater Council [2007] NSWLEC 827

Kioa v West [1985] HCA 81

CITATION:	Smith v Wollondilly Shire Council [2010] NSWLEC 1104
PARTIES:	APPLICANT Patricia Smith RESPONDENT Wollondilly Shire Council
FILE NUMBER(S):	10788 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- 3 – lot rural/residential subdivision, SEPP 1 Objection to minimum lot size, weight of Draft LEP
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 – Development Standards. Sydney Regional Plan No 20 – Hawkesbury-Nepean River (No 2 – 1997). Draft Wollondilly LEP 2009 (DWLEP). DCP No 36 Development in Rural Areas. Agricultural Lands DCP. Wollondilly Development Contributions Plan 2005
CASES CITED:	Winten Property Group Ltd v North Sydney Council [2002] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827
DATES OF HEARING:	1 April 2010
DATE OF JUDGMENT:	14 May 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios (solicitor) SOLICITOR Maddocks Lawyers 1st RESPONDENT Ms P Hudson (soliditor) SOLICITOR Marsdens Lawyers 2nd RESPONDENT Mr P Clay (barrister)