Tuite v Wingecarribee Shire Council - [2009] NSWLEC 1279

Land and Environment Court

of New South Wales

CITATION: Tuite v Wingecarribee Shire Council [2009] NSWLEC 1279

PARTIES:
APPLICANT
L Tuite
RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S): 11272 of 2007

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT APPLICATION - SECTION 97 APPEAL :-

CASES CITED: Tuite v Wingecarribee Shire Council [2008] NSWLEC 1315
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321

DATES OF HEARING: 16 and 17 April and 12 May 2009

DATE OF JUDGMENT:
24 August 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Tomasetti SC
INSTRUCTED BY
Slade Mainwaring
RESPONDENT
Mr C McEwen SC and
Mr M Staunton, barrister
INSTRUCTED BY
B. Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

24 August 2009

07/11272 L Tuite v Wingecarribee Shire Council
JUDGMENT

Introduction

1 SENIOR COMMISSIONER: This is my second decision in these proceedings concerning an application to extract water, for bulk removal by road tanker and subsequent bottling at a different location, from a site in Governors Street at Bundanoon. The site is also 600 m or so from the boundary of Morton National Park.

2 In my August 2008 decision concerning this (then unamended) application (see Tuite v Wingecarribee Shire Council [2008] NSWLEC 1315), I described Governors Street in the following terms:

51 The present landscape of Governors Road is a confined one which is, essentially, only enjoyed whilst travelling along Governors Road itself. The landscape and scenic qualities of Governors Road are those of a narrow, unformed, slightly meandering, rural laneway fringed closely by vegetation.

3 I also described the site of the proposal by the applicant for water extraction in the following terms:

5 The site is generally rectangular and is approximately 100 ha in size. It has a short frontage to the made section of Governors Road, at the south-western end of the site, and has a short frontage to Osborne Street at the north-western end of the site. The un-made section of Governors Road continues along the whole of the southern boundary of the site. Located at the south-western corner of the site, a short distance within the site and a short distance from its western boundary, is a Colorbond steel shed sitting on a concrete slab. The bore from which water is proposed to be extracted is below the concrete slab and the shed contains the operating equipment for the pump presently used to extract water from the bore.
6 The site is zoned residential 2(a1) – Residential “A1” Zone – in the Wingecarribee Local Environment Plan 1989 (the LEP) as are the other properties between the site and Church Street on the northern side on Governors Road. The land on the southern side of Governors Road is zoned Rural and is used for agricultural pursuits. The owner of this property, Mr McKay, gave evidence during the first site inspection. Although the site is therefore at a zone interface, I am satisfied that there is no impact on the adjacent property in the rural zone to the south that would require any special consideration of the type discussed in Seaside Property Developments Pty Ltd v Wyong Shire Council (2004) 136 LGERA 111, [2004] NSWLEC 117.

4 I adhere to my earlier descriptions and my observation concerning Seaside Property Developments. The issue of impact on the adjacent property in the rural zone to the south arising from this amended application is dealt with later in this decision.

5 In that judgment, I concluded that it is in was unacceptable for the reasons which I then discussed. Following a successful appeal pursuant to s 56A of the Land and Environment Court Act 1979 (see Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321), the matter was remitted to me to hear and determine in light of the appeal decision’s conclusions.

The amended application

6 The application has now been significantly amended so that, effectively, I am dealing with a different development application in most respects. This course of action has arisen because both the applicant and Wingecarribee Shire Council (the council) agreed that it was in the interests of the parties and of the local community that the revised application which had been lodged with the council should be dealt with in these proceedings by amendment rather than requiring the parties to go to the time and expense of running fresh proceedings relating to the amendments.

7 A further site inspection was undertaken, for these proceedings, and additional evidence concerning the amended application was heard, informally, during the course of the site inspection from experts advising both the council and the applicant and from objectors.

8 The amendments to the application, essentially, a deal with two aspects of the earlier proposal about which I had made adverse findings. The amendments made in each of these respects constitute a significant and ameliorative modification of the design.

9 The first aspect relates to the development that is proposed to take place on the site. The original proposal involved the entirety of the development on the site being in close proximity to the access point to the site from Governors Street and close to the boundary with the property owned by Mr and Mrs Miller immediately to the west of the site. The proposal now envisages retention of the modest Colorbond shed near the entrance to the site within which are located the bore from which the water is to be extracted and the pump presently used for these purposes. In substitution for the other elements proposed to be near the entrance, the remainder of the development on the site (comprising a storage and operational shed and storage tanks described below) will be located at some 60 m or so from the boundary with the Miller property and some 70 m or so from the entrance to the site.

10 It is also proposed to be established a loop road within the site that will provide access to the operations and amenities building of modest dimensions (being approximately 6 m x 4 m) accompanied, on the side of this shed away from the Miller's property, by two outdoor stainless steel storage tanks within which the water is to be stored pending its loading into the road tanker vehicle for removal and bottling up off-site. Each of these tanks used to be some 2.5 m in diameter and some 11 m long.

11 As a consequence of discussions with Mr Miller during the course of the site inspection, the applicant has agreed that these tanks will be painted with a non-reflective finish and in a neutral colour. The long axis of these tanks is orientated, generally, in a fashion running perpendicular to the boundary with the Miller's property rather than across any line of sight from the Miller's house or property, generally (if such a sight line were to be available – which it is presently not, as discussed later).

12 The second major aspect of the amended application involves a complete change of approach to the works proposed in Governors Street.

13 The original application involved the complete reconstruction of Governors Street and the removal of the entirety of the vegetation along it. Instead of that complete reconstruction, the applicant now proposes a process of removing and replacing a maximum of 200 mm from the surface of Governors Street within the area is formed by the present wheel tracks and with no formed shoulders. The new surface will effectively replicate the present surface using crushed material and, in appropriate locations, will use additional materials such as geotextile cloth and root protection structures.

14 The surface of Governors Street will remain generally smooth but slightly textured, similar to the surface presently along the road and will do so in a fashion that does not require the removal of or interference with the root systems of any of the trees within the road reserve or on adjacent properties. The arboricultural conclusions concerning the works in Governors Street are discussed in more detail later.

15 In addition there may need to be excavation and reconstruction, up 600 mm deep for a maximum of 10 m (being 5 m outward from either side of the pipe) for each of the two culverts over drainage lines that cross Governors Street from north to south. This additional excavation and reconstruction will taper back from the maximum depth of 600 mm at its centre to the general 200 mm depth at the end of the maximum of 5 m from the centre point. However, Dr Martens, an engineering expert who gave evidence on behalf of the applicant, said that he did not think it likely that the full extent of this excavation in the vicinity of each culvert would be required.

16 The issues that are raised by the Council in these further proceedings are as follows:

The sustainability of the proposed water extraction and possible impacts on Morton National Park;

The impacts on vegetation and Governors Street and on adjacent properties;

The impact on Governors Street and Jackmans Cottage (as a consequence of them being proposed to be listed as local heritage items in the new draft Local Environmental Plan);

The adequacy or otherwise of the technical information concerning pollutant, stormwater and effluent disposal relating to the development on the site;

The impact on the amenity of residents of Jackmans Cottage;

The impact on the Miller property immediately to the west of the site; and

Other new matters raised by the objectors.

The approach to be taken in considering the matter

17 I have considered how I should approach the (now amended) application, given that the applicant has amended the proposal to respond to some but not all of my adverse findings in my 2008 decision and the fact that the council is seeking to change the planning regime within which the application should be assessed. This changed planning regime arises is the consequence of a draft new Local Environmental Plan that is proposed to replace the current Local Environmental Plan applying at the time the original and the amended applications were lodged.

18 I have concluded that it would be appropriate for me to assess, initially, on the basis that is most advantageous to the council and that which poses the highest thresholds in the applicant. If the amended proposal were to be acceptable, as I have concluded it is, on that basis, it would be unnecessary to consider the proposal on any assessment basis less onerous for the applicant.

19 I have, therefore, approached my assessment on the basis that the weight to be given to the draft Local Environmental Plan should be significant and potentially determinative. Indeed, as will be obvious from what follows in later discussion on this decision, I am of the view that the present application, had it been lodged initially in this form and assessed on the basis of either Local Environmental Plan (both the draft as presently proposed and the current operational Local Environmental Plan), the application would have required to have been assessed as acceptable.

Water extraction

20 During the hearings leading up to my 2008 decision, I had the advantage of uncontradicted expert evidence from Mr Lane, a hydrogeologist, who was the single party's expert on these issues. Mr Lane's evidence has been carried forward as evidence in these remitted proceedings.

21 I have received evidence, by a letter tendered by the council, from the Department of Environment and Climate Change expressing concerns about the water extraction proposed to be undertaken and proposing a range of monitoring conditions to be attached to any development consent which might follow from these proceedings. However, there is no expert evidence, of any nature, provided in support of these concerns. Although it is also not expert evidence, the council received a letter from the Department of Water & Energy (dated 18 November 2008) indicating that the applicant's water extraction licence would be renewed and it was that Departments view:

.. that the groundwater extraction authorised by the Licence, up to 50ML/yr, is hydrogeologically and environmentally sustainable and that there are sufficient monitoring and reporting conditions on the Licence to safeguard such extraction.

22 As a consequence, there is no evidentiary basis upon which I could depart from the conclusion that I reached in my earlier decision. I must, necessarily, therefore, conclude that this issue does not provide any basis upon which I could refuse to present application nor could it make any contribution to warranting refusal.

23 In addition, as earlier noted, the Department of Environment and Climate Change has proposed that a wide-ranging set of monitoring and other conditions be imposed. None of these conditions are supported by Mr Lane’s evidence in the earlier proceedings. The Department, although proposing these conditions, has not provided any technical reasons why the requirements are necessary. I therefore have no evidentiary basis upon which I could impose the conditions sought by the Department. I therefore decline to impose them.

The bottled water industry

24 Although a number of written objections to the amended proposal raised the question of the sustainability or otherwise of the bottled water industry, and provided some further broader commentary on this point, these submissions do not persuade me that I have any basis upon which I could depart from my conclusions on this topic in my 2008 decision. That conclusion was that it would not be appropriate, in these proceedings, to require the applicant to provide justification for the ecological sustainability of the bottle water industry generally.

25 There is also nothing in the present amended application that would cause me to depart from the conclusion I reached in 2008, on the basis of the evidence that was then before me (this evidence having been carried forward into these proceedings). As I indicated in my earlier decision, there is nothing of an ecological sustainability nature, specific to this application, in its amended form, as was the case with the original proposal, that would cause me to refuse the application on that basis or that would contribute to the warranting of refusal.

Reconstruction of Governors Street

26 I walked the length of Governors Street with Ms Hopwood and Mr D’hondt, the arborists for the applicant and the council respectively. During the course of this inspection, in addition to giving informal evidence concerning impacts on trees within the road reserve and on adjacent properties, these experts discussed special treatments proposed by the applicant at the eastern and western ends Governors Street (that is at the intersection of Governors Street with Church Street to the west and at the entrance to the site at the eastern end of the formed element of Governors Street). Each of these treatments at the ends of Governors Street is discussed separately.

27 With respect to the now proposed method of reconstruction along the line of Governors Street, the arborists agreed that, provided appropriate conditions requiring that excavation in the root protection zones of any of the trees be undertaken by an air knife or other sensitive excavation technique (in order to ensure that no of any significance roots are severed) and that appropriate root shielding was installed (to provide protection to any significant roots – the relevant diameter being agreed by them as being the appropriate root diameter to be protected varying depending on the location of the relevant tree) as part of the reconstruction of the road surface, there is no basis upon which I could have any concern about the adverse impacts on those trees.

28 Similarly, during the course of walking the length of Governors Street, the question of the extent of and the necessity for canopy pruning to ensure that there was no inadvertent damage to trees caused by the applicant’s trucks using the road was discussed. Dr Martens advised that it would be possible to adjust the location of the 3 m wide reconstructed element of Governors Street so that the line of formed road would, as it were, become slightly more meandering than is presently the position. Such alignment redesign would result in the new carriageway being located so as to minimise the need for any canopy pruning to be undertaken to any of the existing trees.

29 As a consequence of this, the position was reached, as I understand it, that no branches of significance would need to be removed from any of the trees. Only minor initial and subsequent maintenance pruning would be necessary to ensure that the existing vegetation could be kept clear of water tankers using the road to access the applicant’s proposed facility.

30 As a result, there will be no significant visual or arboreal impact along the length of Governors Street. The applicant will be required to maintain the new road pavement but it will visually replicate that which is presently seen as one walks or drives along Governors Street – although it is likely not to be as muddy underfoot as is the experience at the present time. There will still be overhanging vegetation and the pruning undertaken will not cause any impact on the trees or any perceptible change to the present visual experience. Overall, any person undertaking passage along the main part of Governors Street, whether that passage be on foot or by vehicle, is unlikely to notice any perceptible change from what is presently observed when doing so.

31 In light of these agreements between the arborists, the works along the main length of Governors Street do not provide any basis to refuse the application or make any contribution to warranting its refusal.

Reconstruction of the intersection of Governors Street and Church Street

32 With respect to the intersection of Governors Street and Church Street, the initial modifications to the application caused Mr D’hondt to be concerned about the survival of a significant tree in the road reserve on the north-eastern corner of the intersection. After Dr Martens considered the location of the proposed reconstruction of the intersection, he concluded that it would be possible to move the reconstructed element of this intersection of some 2 m or so further to the south. The applicant agreed to this alteration.

33 Mr D’hondt and Ms Hopwood agreed that, if that were to occur and similar construction requirements using an air knife or other sensitive excavation technique and root protection were to be required for the reconstruction of the intersection, there was unlikely to be any significant adverse impacts on the tree.

34 The consequence of there being no impact on this tree meant that there was no follow-on adverse impact on the adjoining trees further to the north growing in the road reserve or on the adjacent private property.

35 Mr D’hondt’s initial concern had been that, had the extent of the impact of the reconstruction necessitated its removal, it would have been necessary also to remove other trees further to the north because the removal would have resulted in exposing these trees to greater adverse wind impacts, requiring their removal.

36 All of those matters are now resolved by the agreement concerning the redesign of the intersection; the tree protection measures during construction agreed to by the arborists; and the moving of the reconstruction modestly further to the south.

37 The arborists have also accepted that such a movement of the reconstruction to the south would not have any adverse impact on a tree in the Church Street road reserve further to south. As a consequence, there are no impacts arising from the proposed reconstruction of this intersection on any trees.

38 In light of the applicant's agreement to move the reconstruction of the intersection modestly to the south and the agreement between the arborists, the works proposed that this intersection do not provide any basis to refuse the application or make any contribution to warranting its refusal.

Construction at the entrance to the site

39 At the eastern end of the Governors Street, immediately outside the entrance to the site, there are located two substantial eucalypts. Mr D’hondt expressed the view that, for the western of them, any carrying out of work within the root protection zone would require the removal of the tree because of its age, extent of the deadwood in its canopy, a cavity in its base and its general poor health.

40 Mr D’hondt also had significant reservations about the possible impact of the carrying out work in the root protection zone of the second of these eucalypts as this tree has a significant lean to the north across the unformed part of Governors Street with part of its outer canopy overhanging the boundary of the site.

41 Dr Martens gave evidence that the road pavement renewal proposed to be carried out at this point could be carried out without any excavation. Modification of the works would enable it to be carried out by the sweeping off of any vegetative detritus and any loose stones or soil; the use of geotextile cloth and other specialist materials and simply laying the new road surface on top of the existing surface (with no excavation to be undertaken in the critical root zone of these trees).

42 Ms Hopwood and Mr D’hondt agreed that, if this construction methodology were to be adopted, there would be no impact on this tree and its ageing process would simply continue. They agreed that a degree of deadwood removal from the canopy would be prudent for public safety reasons but that that necessity arose as a general proposition of tree management rather than particularly as a consequence of this application.

43 They also agreed that there would also be no adverse impact on the second of the eucalypts if this revised construction methodology were adopted as agreed to by the applicant.

44 In light of the agreement between the arborists concerning the proposed works at the entrance to the site from Governors Street, the proposed works at the eastern end of the formed part of Governors Street do not provide any basis to refuse the application or make any contribution to warranting its refusal.

45 The cumulative consequence is that the extent of the proposed reconstruction of the unsealed 3 m wide section of Governors Street required to permit the passage of the tankers to be used for water removal is acceptable. Specifically, I am satisfied that there is no unacceptable arboricultural impact of this reconstruction commencing with the reconstruction of the intersection with Church Street and culminating with the reconstruction of the entrance to the site.

Visual impact

46 I now turn to the question of whether or not there is any visual impact, in a general sense, arising from the reconstruction of Governors Street; the construction of the loop road; and/or the proposed erection of the facilities on the site that would warrant refusal of the proposal or contribute to warranting its refusal.

47 I have identified, on the basis of Dr Martens’ evidence as earlier set out, the nature of the reconstructed pavement that will be established within Governors Street. Except for a strip some 15 m into Governors Street from Church Street, this will be, effectively, virtually visually identical with that which is currently able to be seen as a one looks or drives along Governors Street. Although Governors Street will be better maintained and will have fewer potholes and less muddiness, nonetheless the general character of Governors Street will remain that of a meandering and vegetated country laneway and this general character will be maintained virtually without alteration.

48 Whilst a regular user of Governors Street may appreciate that it has been resurfaced and no longer has the same number of muddy potholes, nonetheless its broad characteristics will not have changed in any significant fashion.

49 As a consequence, I am satisfied that there is no visual alteration to the formed part of Governors Street that would warrant refusal of the application or could contribute to warranting refusal of the application.

50 I draw this conclusion not merely concerning casual users of Governors Street but also for any regular users. However, I readily acknowledge that those who are completely opposed to the applicant's proposal may have their experience of Governors Street coloured by their knowledge that the applicant's proposal has been approved. At the eastern end of the made portion of Governors Street, these objectors will view the applicant's facilities with disapproval but this would be as a consequence of their opinion of the desirability of the applicant's proposal rather than as an effect occasioned by the actual changes to Governors Street itself.

51 The tarsealing of a portion at the western end of the Governors Street, at its intersection with Church Street, is but a small adverse impact on the visual character of Governors Street and certainly not one which would warrant refusal although it could make a minor contribution to refusal had there been sufficient other adverse impacts to warrant refusal when considered in a cumulative sense.

52 The question of visual impact for bushwalkers using the unformed portion of Governors Street (extending across the eastern frontage to the site beyond its entrance and further to the east past other properties not owned by the applicant) was raised by the objectors to the proposal.

53 At the eastern end, taking the council's and the objectors’ evidence at its highest, the unformed port of Governors Street is also used, on a regular basis, for casual bushwalking.

54 Taking this evidence at its highest on the basis given by the objectors (and setting aside, in its entirety, the informal survey information provided by the applicant concerning the use of the unformed portion of Governors Street), it is clear that, from a little to the west of the entrance to the site to a point some 100 m or so to the east of the entrance to the site, a person walking along Governors Street to the end of the made portion and then continuing to walk beyond this to link with the south-western end of Panorama Street will be able to view the loop road and structures located on the applicant's land.

55 As previously noted, those structures will comprise the loop road and its associated drainage structures (these will be, essentially, only the spreaders at the southern end of the pipe under the loop road and, somewhat further to the east, at the end of the drainage berms); the existing small shed; the proposed new amenities block; and the two holding tanks (that will be, as earlier noted, in neutral and non-reflective colours).

56 A security fence (discussed further regarding Mr Miller's property) will surround this. There is proposed to be a deal of vegetative screening. The fence is to be of steel mesh with the colour of its plastic coating to be as visually unobtrusive as possible and, if sufficiently intensely planted on both sides, will, in my view be imperceptible. Landscaping on both sides of the fence is to be required to ensure that this is the position.

57 The structures that will be visible to a passing walker will be alien in their natural setting. Their colours, however, will be sympathetic. Although, in a sense, they will be industrial, the structures will be to a degree industrial in the same sense of that a range of agricultural structures can also be seen as industrial in a natural setting.

58 I accept that, for those who object to the proposal, the structures will constitute an alien and jarring element of this landscape of. To someone whose visual experience of them is not filtered through the prism of objection to the proposal, they will, nonetheless, be an intrusion into a natural setting.

59 However, on the basis of a geotechnical report provided by the applicant (prepared some considerable time ago at a time when a possible residential subdivision of the site was being considered), the location of the present proposed facilities is, generally speaking, in the same position where a rural residence could be located at the end of driveway access from Governors Street. Further, the types of the buildings now proposed are not inconsistent with those that might be expected on a rural residential property. Such a residence would also provide an intrusion into the natural setting of a different nature – but an intrusion nonetheless.

60 Although the nature of the intrusion of the applicant's proposal into this setting is different and, at its highest in the council’s and objectors’ positions, more intrusive because of its industrial nature than a residence would be, taking this impact at its highest, such additional visual impact can only be regarded as minor. Again taking the council’s and objectors’ case at its highest, this impact would only make a very minor contribution to any consideration of refusal and would certainly not provide a basis for refusal in itself.

Impact on proposed heritage items

61 As earlier noted, the draft local environmental plan nominates Jackmans Cottage and Governors Street as items of local heritage. As a consequence, it is necessary to consider whether there is any particular impact on either of these items which would warrant refusal or contribute to the warranting of refusal.

62 I have earlier discussed, extensively, the reconstruction of Governors Street and concluded that, save for a very minor visual impact caused by the reconstruction of the intersection with Church Street, there will be no perceptible impact on Governors Street. Indeed, in some respects, the proposed reconstruction of Governors Street, given the protective measures to be undertaken whilst this occurs, is no more than might ordinarily be expected for the maintenance of such a thoroughfare but carried out in a far more sensitive fashion than might ordinarily be expected from a council road maintenance program. The canopy pruning, to permit the passage of the tanker trucks, will be imperceptible. In all this, I am satisfied that there can be no relevant impact on the heritage value of Governors Street itself.

63 With respect to Jackmans Cottage, vibration and noise expert evidence given in the earlier proceedings stands unchallenged in these proceedings. Any conditions of consent will require, if the concurrence of the owner of Jackmans Cottage is given, appropriate monitoring of the fabric of the cottage. If such consent is not given, monitoring at the closest possible location in the public domain will be required. On the basis of this evidence, I could not conclude that there would be any physical interference with the fabric of this proposed heritage item.

64 The agreement of the arborists concerning the works to be undertaken in the root protection zones of the various trees in the vicinity of Jackmans Cottage together with the agreement by Dr Martens to a greater degree of meandering of the path of the road than is presently the case (but a meandering of only modest departure from the present path of the road way) means that there will be no loss of trees in the vicinity of Jackmans Cottage whereas, in the earlier proposal, there would have been significant alterations to the vegetation pattern and outlook from the cottage. There is, therefore, no visual impact on this proposed heritage item from the reconstruction works themselves.

65 The ambience of Jackmans Cottage will be impacted solely by the passage, on four occasions each weekday, of a comparatively slow moving tanker truck. Two of those movements will be un-laden and two of them laden. This, I accept, will be a very minor change in the ambience of Jackmans Cottage. It will not, however, in my view, constitute an impact of any significance on the heritage value of this proposed heritage item. Nor will these truck movements constitute such any general adverse impact on the occupants of Jackmans Cottage. A similar position applies to the other residences between Jackmans Cottage and Church Street. If I be wrong in reaching this conclusion, any such impact is of an extremely minor nature and would certainly not warrant refusal of the application nor could it provide any contribution of significance to the warranting of refusal of the application.

Construction within the site

66 There are also two arboricultural issues, within the site, requiring consideration. The arborists who gave evidence on arboricultural issues within the site were Mr Simpson and Mr D’hondt for the applicant and the council respectively. The two arboricultural issues relate to the construction of the stormwater berm and the digging of the trench to connect the effluent disposal line from the amenities building to the council's sewer main in the nearby street to the north-west.

67 With respect to the stormwater berm, the applicant has agreed that wherever the berm is to be constructed within the agreed root protection zones of any of the trees on the site, such construction is not to be undertaken using excavation and ground shaping but is to be undertaken entirely by the importation of clean fill to be shaped to create the berm in those root protection zones. The arborists agreed that adopting this methodology would not create any adverse impacts on any trees. As a consequence, there is nothing from the proposed construction of the berm that remains of concern.

68 Dr Martens gave uncontradicted expert evidence concerning engineering and drainage issues within the site. With respect to the construction of the proposed effluent disposal line, it was Dr Martens evidence that this pipe did not need to run in straight lines and that the use of appropriate flexible poly pipe would enable the line of the trench to carry the pipe to be located outside the root protection zone of any trees on the site. Specifically, in addition, an inspection of the point where the pipe would exit the property into the road reserve of Osborne Street at the north-western corner of the site and then be constructed within that road reserve to the appropriate manhole connection would also not impact on the root protection zone of any tree. The arborists agreed on appropriate supervisory conditions to ensure that this occurred. As a consequence, there are no adverse arboricultural impacts arising from the on-site construction proposals.

69 The application also envisages the construction of a large bioremediation basin in the area enclosed within the loop road. This bioremediation basin will collect and treat all stormwater falling within the developed portion of the site. This stormwater will be collected by a number of drains, including an additional drain proposed by Dr Martens, and diverted into the bioremediation basin. Portion of the loop road itself will be sloped so that it will drain directly into the bioremediation basin. Stormwater from outside the developed portion of the site will be directed around the developed area by the stormwater berm earlier discussed.

70 Discharge from the bioremediation basin will be by a pipe under the southern portion of the loop road and will lead to a second rock spreader that will act as a diffuser before an overland flow path across the southern boundary of the site and the unformed part of Governors Street.

71 It was Dr Martens’ opinion that the bioremediation basin, which had not been designed by him but which had been submitted to him for his professional expert assessment, interpreted colloquially by me, was “over engineered” for the needs of the site. It was his evidence that the basin would be able to handle run-off that was significantly in excess of that which would be expected from a 1:100 year rain event and would also be able to contain, in the unlikely event of some catastrophic failure leading to a full fuel tank from a truck discharging into the basin, such resultant contamination until a cleanup crew could deal with it. It was his opinion that, in such an unlikely event, no contamination would escape from the site.

72 Dr Martens’ evidence responds directly to the concerns raised by Mr Mackay, one of the owners of the agricultural property immediately to the south of Governors Street across from the site. First, as noted immediately above, it was Dr Martens’ opinion that the bioremediation basin would be significantly more than adequate to prevent any pollution being discharged from the developed area of the site if the proposal were to be approved. Second, it was his evidence that the effect of the rock spreader at the end of the berm and the rock spreader at the end of the discharge pipe from the bioremediation basin would ensure that the overland flow of water from the site across the unformed road and into Mr Mackay's property would replicate, at most, the flow of water which naturally occurs along this drainage line (although, if I understood him correctly, it was his opinion that sometimes the flow might, in fact, be less than that which currently occurs).

73 There are, therefore, no adverse impacts from the proposed on-site construction.

Impact on the Miller property

74 I turn, now, to the impact on Mr and Mrs Miller's property. Mr Miller raised two possible impacts on his property. The first was his concern about visual impact on his property and on the development potential of his property and the second was possible noise impacts on occupants of his property from trucks going to and from the site for the purposes of water removal.

75 I inspected the outlook from each end of Mr Miller's dwelling and I am satisfied that it is unlikely that the facilities or the internal loop road will be visible from any point in his residence. That conclusion is reached without any consideration of the additional landscaping that is proposed by the applicant and which, in the vicinity of the security fence, I determine should be comparatively intensive, on both sides of the fence, for the full length of the fence.

76 I then walked down the Miller property to the south, to the area of his property in the vicinity of Governors Street to which his property has its secondary frontage. This area, on his evidence, has several possible house sites and a potential, in the future, of having two new allotments subdivided from the existing dwelling. Although Mr Miller is removing hawthorn bushes from his property (which bushes, at the present time, provide a degree of screening to the site), that screening will simply be replaced and intensified by the landscaping that is to be required of the applicant to both sides of the security fence.

77 I am satisfied that it is unlikely that any of the applicant's proposed development would be able to be seen from Mr Miller's property, at any point along its length in a north-south axis. If I am wrong about this, anything that is likely to be seen of the development will be mere glimpses.

78 The setback of the proposal from the boundary of the property of some 70 m means that, even if glimpses were to be had, they would be so minor as not to constitute any impact on any location within Mr Miller's property and would certainly not impact on any development potential of his property.

79 With respect to noise, Mr Miller's objection was to what I understood him to be describing as the alien nature of truck noise rather than the level of the noise itself. He indicated, in response to a question, that he differentiated between road noise to a similar noise level made by agricultural equipment because he expected to hear agricultural equipment in an agricultural setting but that truck passage noises were alien and therefore unacceptable.

80 There will be a maximum of four truck movements per day on weekdays (excluding public holidays) between the hours of 9:45 AM and 2:30 PM arising from the proposal. Of those, two will be truck movements into the site unladen and two truck movements from the site when the tanker has been filled with water.

81 It was Dr Martens’ evidence that the movement round the internal loop road in a clockwise direction would lessen the likelihood of significant braking or year changing noises being heard from the Millers’ residence. I understand that the applicant has accepted the condition that requires all such movements to be in a clockwise direction.

82 There will also be, from time to time, on an unspecified basis, casual light vehicle movements to and from the site by staff or other persons visiting the site. It is likely that these movements will be generally comparable to the light vehicle movements that would arise if there were to be a residence erected on the site and accessed from Governors Street.

83 Governors Street is a street that is already traversed by vehicles for access to and from Jackman's Cottage. Vehicle access to and from the site is to be expected in any normal sense for any development that might take place on it. Because of the infrequency of the noise of these light vehicle movements and the fact that there is no special tonal characteristic of this noise that is unacceptable, I do not consider that the noise from the light vehicle movements provides any basis for or contribution to consideration of refusal of the amended proposal.

84 Although residents of the Millers’ property - either the present house or any new dwellings constructed on it, if subdivided - will be able to hear the truck movements, the fact that these will take place during weekday daylight hours, as earlier described, and at the limited frequency envisaged by this proposal, this means the noise level is not unreasonable.

85 The consequence of all the foregoing is that there are now no impacts on Mr Miller's property that warrant refusal or are capable of contributing to refusal of the amended application.

Remaining adverse finding from 2008

86 In my 2008 findings, I held that there was an element of risk, in some weather conditions, to pupils at Bundanoon Public School. I held that this was an adverse impact that could contribute to warranting refusal but did not, in itself, warrant refusal in its own right. Nothing has changed in the amended proposal that alter is that position and my findings, in that regard, remain unchanged.

Contested conditions

87 The applicant contests a wide range of the council's proposed conditions of consent. I have been provided with the competing versions but, in many instances, no reasons for the disagreement.

88 In addition to a specific matter raised immediately below, I have considered each of the contested matters and made a determination with them giving short reasons in each instance. In some instances I have adopted the council's position; in some of the applicant's position; in some a mixture of the two positions; and, finally, in others, a position which differs from both. In the absence of detailed submissions on the contested conditions, I have done this on the basis of the evidence and what was seen on the view.

89 I note that a document entitled “NOTICE OF PAYMENT – DEVELOPER CHARGES & SECTION 94s” is appended to the conditions of consent. There is competition between the parties as to what should be the appropriate date for this notice. On my reading of the document, on either date, the notice is dated after the expiry of the validity of the charges quoted in it. The parties are to discuss and settle the form of such notice if it is required to be incorporated in the conditions of consent and to settle it in a fashion that is internally consistent.

90 My determinations concerning the contested conditions are:

No

Position adopted

Short reasons

1A(b) Neither Dr Martens’ evidence was that there pipe could be moved so that it did not need to be laid in the CRZ of any tree. The condition is to conclude with a full stop after the words “any tree” in the second line.

1A(c) Neither The word “upper” is to be deleted and the words “second to the north from the southern end of Osborne Street” inserted after the words Osborne Street where presently appearing. As a consequence, no further definition of the upper manhole is required.

1A(d) Applicant
There is no explanation as to what the word “independent” would connote or how it would be ensured in this context given that any person fulfilling this function will be employed by the person having the benefit of the consent. It is sufficient to specify the appropriate qualification level given that the council can take action should the condition be breached.
This position obtains wherever else this issue arises in the conditions and the word “independent” is to be deleted wherever it relevantly appears.

1A(e) Council The expression “whilst ever water is being transported from the site” is imprecise and does not adequately comprehend circumstances under which the development might only operate intermittently. Regular, annual, pruning ensures that an appropriate tree management regime is observed.

1A(f)(i) Applicant The sensitive excavation work is only required to be undertaken in areas where there is a critical root zones identified by the arborists during the course of proceedings. It is not required for the full length of Governors Street on both sides.

1A(f)(ii) Council The agreement of the arborists related to the protection of the roots using a perforated protective casing. The difference between “metal or similar” and “porous concrete or similar” may end up being a distinction without a difference. However, it is my recollection that there was no discussion about depth alterations once some excavation had been undertaken. I do not consider that I have any evidentiary basis upon which the applicant's position could be accepted and the position proposed by the council is consistent with the arborists’ evidence. It is my recollection that the discussion focussed on metal protection structures.

1A(f)(iii) Council Consistent with the position taken immediately above.

1A(g) Neither

The applicant’s wording in the first proposed change is accepted to the extent that it will conclude after the word “tools” with the word “or” being substituted for the comma between the words “hose” and “hand” and this sentence concluding at that point.

The sentence commencing “Where an air ..” proposed to be deleted by the applicant is to be retained.

“perforated metal half” is to be retained consistent with my earlier determination.

The words commencing with the word “including” proposed by the applicant to be deleted are to be deleted as the resulting condition is less permissive than that proposed by the council and provides greater supervision and protection to trees in this vicinity.

1A(h) Council The council's proposed condition is consistent with the agreement reached by the arborists during the course of the site inspection and reflected in the earlier portion of this decision.

1A(i)(ii) Council There is no basis upon which to restrict a decline in health in this tree to works within Governors Street. Such a decline in health could also result from the use of the reconstructed Governors Street by the tanker trucks proposed to be utilised by the applicant.

2(a) Applicant If an appropriately qualified person has both necessary professional qualifications, it is unnecessary to put the applicant to the expense of having to separate engineers involved.

2(b) Mixed

Damage assessment for Jackmans Cottage from vibration is not intended to be confined to the construction stage only. Such protection is to extend to all potential vibration causing activities resulting from the proposal including its operation.

A vibration expert is the appropriate person to measure such levels.

2(c) Applicant Consistent with ensuring that the consent operates in rem rather than in personam.

3 Council There is no evidentiary basis upon which the applicant's position should be preferred over that of the Council and the council's position is, inherently, likely to be more precautionary.

4 Applicant Consistent with ensuring that the consent operates in rem rather than in personam.

5 Council The council's proposed condition is consistent with the evidence given. The deletion of the words after the word “Energy” leaves future volume adjustment in the hands of the licensing department rather than also being governed by the development consent. The provision will thus ensure that planning consideration would also be made of any future alteration to extraction volumes.

6 Mixed

The reasons for the difference between the parties in the first element of this condition are not clear. If the intention is to ensure that the maximum length of the truck will be 19 m; that it will have a minimum of five axles; and that it will be a semitrailer, this is appropriate. Neither condition appears to make this provision. To reflect this understanding of what is proposed, the words should be “a semitrailer with a maximum length of 19 m and a minimum of five axles.”

The second set of proposed words is unnecessary as they reflect the law.

The logbook should be kept for five years to ensure that there is proper long-term record keeping guaranteeing that the conditions of consent are observed.

The requirement to take appropriate action in response to justified complaints is in the public interest and is to be retained.

It is my understanding that the principal noise emitting braking systems are exhaust compression braking systems. However, the council's proposal to use a low ratio gear for braking is also appropriate. Hence, this provision shall read “In the descent of Church Street, trucks shall use low ratio gear and shall not use engine compression brakes. Within Governors Street and the development site, trucks shall not use engine compression brakes.”

7 Applicant

The first elements proposed by the applicant to be deleted are repetitions and should be deleted.

The second element proposed by the applicant is consistent with ensuring that the consent operates in rem rather than in personam.

7A Applicant As I understand it, the original proposed condition was “Council requires that all design plans be prepared to council standards.” This is acceptable. All additional proposed words appeared to be gratuitous advice rather than matters appropriate to be contained in a condition of consent.

9 Applicant This is gratuitous advice rather than matters appropriate to be contained in a condition of consent.

10 Applicant This is gratuitous advice rather than matters appropriate to be contained in a condition of consent.

12 Applicant It is not lawful to impose a bond for engineering works that are located on the applicant's property. The restriction to the engineering works being those “on public assets” is appropriate.

12a Mixed

The deletion of the word “and” appears to be a sensible grammatic change.

The elements that the applicant proposes to delete from the council's version of the condition commencing with the word “without” and concluding with the word “development” should remain. However, the sentence “This obligation is only to apply to any maintenance or repair works or damage caused by the use of the road arising from this consent.” should be added to the paragraph. This revised provision balances the reasonable obligations of the beneficiary of the consent to undertake maintenance with the fact that the requirement should only be for maintenance caused by damage arising from your operation of the consent.

12b Applicant This is gratuitous advice rather than matters appropriate to be contained in a condition of consent.

12c Mixed

The reference to requiring reporting on condition 1A(i)(ii) is unnecessary in light of the terms of that condition.

It is reasonable to require that the report include details of the pruning in order to ensure that these activities have been carried out in accordance with the responsibilities of the beneficiary of the consent pursuant to the conditions of consent.

The requirement for reporting on condition1A(i)(ii) is unnecessary in light of the terms of that condition.

The requirement to provide details of the road maintenance works is reasonable to ensure that the council has the ability to make an enquiry of the contractor if necessary and to understand the rate of maintenance required.

The provision of reporting annually should remain a requirement during the life of the development rather than the version proposed by the council or by the applicant.

It is reasonable to require that a copy of the reports shall be kept on the premises so that they are readily locally available to any relevant council officer who may wish to examine these after undertaking an inspection in the locality.

14 Neither

These introductory words, however expressed, should apply only to works not the various plans. In addition, the approval process envisaged should be confined to works in the public domain and the obligation to carry out any works should be in rem.

The preamble is to read:

“The provision, at no cost to the Council, of the works and services in (a)(i), (ii), (iii) and (b)(iii) of this condition with these to be documented and constructed in accordance with Council's Development Control Plan Nos 12 and 41, to the satisfaction of the Development Control Engineer.
PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE approval is to be obtained for works in any public road and for the connection to Council’s sewer main to be undertaken by submitting adequate documentation including plans, standard notes and completed design checklists, calculations and specifications, to Council which justify that the proposed works are in accordance with all Council's standards and all other relevant Codes and guidelines.”

14(a)(ii) Neither
The council proposes a dilapidation report for Church Street from its intersection with Governors Street to the intersection with Anzac Street, the main thoroughfare through Bundanoon. The applicant seeks to limit this report to 50 m north of the northern alignment of Governors Street.
In the absence of evidence or submissions on this point (and thus having no assistance from the parties on this point), neither position seems reasonable and the dilapidation report for Church Street should be from Governors Street to the top of the hill in Church Street (this being, in my estimation, the element of Church Street potentially subject to additional impact from the trucks as a consequence of the slope involved). To provide certainty, the point should be delineated by reference to the southern boundary on Church Street of Bundanoon Public School.

14(a)(iii) Mixed

Finishing point for responsibility – see 14(a)(ii)

The council should not be required to approve a report. If the council disagrees with the conclusions, that is another matter.

No reason has been given why repairs should not be included and it is reasonable that they should be.

“Associated with extraction” is potentially wider than mere transportation of water and would encompass trucks use for other purposes associated with the site (construction, tank repair or replacement etc) and thus is to be preferred to the applicant’s proposed words.

The works should not be confined to “immediately required repair” works but all works shown as necessary as a consequence of this proposal going ahead.

Finishing point for responsibility – see 14(a)(ii)

14(a)(iv) Mixed

The applicant’s first proposed change (delete “A minimum of” and substitute “At least”) appears to be a difference without a distinction – however, the second version is better flowing use of language and is to be preferred.

The applicant’s second proposed change would remove the sewer connection works in Osborne Street from the condition and no reason for such change is advanced and it is therefore rejected.

The applicant’s third proposed change is consistent with using language that makes it clear that the consent operates in rem rather than in personam and is accepted.

14(a)(v) Council The applicant’s proposed change would remove the sewer connection works in Osborne Street from the condition and no reason for such change is advanced and it is therefore rejected.

14(b)(i) Applicant Unnecessary repetition of matters adequately dealt with elsewhere.

14(b)(ii) Mixed

The applicant’s proposed heading is more accurately reflective of the provision

This condition should reflect the definition of the manhole location provided above for the purposes of condition 1A(c).

14(b)(ii) Neither

This condition number appears twice and the second appearance should be renumbered 14(b)(iii).

It is my understanding that only one manhole in Church Street is impacted by this development. If the lid of that manhole does not presently constitute a “heavy duty gatic lid”, it would appear that the parties accept that this should be the case. If reconstruction is required, this should be at the applicant's expense.

15A Council This condition in the form proposed by the council is reflective of the agreement reached between the applicant and Mr Miller during the course of the site inspection.

19 Mixed

The first element proposed by the applicant is consistent with ensuring that the consent operates in rem rather than in personam.

Providing a time when the summary of assets is to be provided to the council is not unreasonable and the time nominated by the council is reasonable.

20 Applicant This condition is unnecessary as it is a re-statement of the law.

22 Applicant The reasons for rejection of the conditions proposed by the Department of Environment and Climate Change are canvassed, briefly, in the principal body of the decision.

23 Applicant This condition is unnecessary as it is a re-statement of the law.

Notes Applicant If the council wishes to supply additional advice to the applicant, it is free to do so. However such advice will not be incorporated as a condition of consent as it is not, in fact, a condition of consent.

91 Conditions reflecting matters in (81) – directions of operation truck movement within the site and in (89) – Developer Charges are to be incorporated.

Conclusion

92 I have concluded that there are or may be number of minor adverse impacts of the proposal. Those minor adverse impacts concern the risk to pupils of Bundanoon Public School; impact on the amenity of residents of Jackmans cottage (and, on a similar basis, on other houses fronting Governors Street); the minor visual impact on bushwalkers walking beyond the entrance to the site along the unformed part of Governors Street; and the minuscule visual impact of the reconstruction of the intersection of Governors Street and Church Street.

93 Although there are, at most, a number of minor adverse impacts, taken cumulatively, these are not sufficient to warrant refusal of the present application.

94 I make it expressly clear that my conclusion that the first two of these impacts are only minor is based on the fact that proposal is confined to two tanker movements per weekday (excluding public holidays) to and from the site. Should, at some later time, an increase in the number of tanker movements to and from the site be sought, a fresh assessment would be necessary of the extent of these two impacts and any other impacts that might arise and whether, in the light of such proposed change, those impacts would remain acceptable.

95 Similarly, I note that it is my understanding that the evidence given by Mr Lane concerning hydrogeological issues was based on the level of extraction of water proposed in this application rather than on some general and unconstrained basis.

96 It therefore follows that the orders of the Court will be:

The appeal is upheld;
Development Application LUA 07/1170, as amended, for reconstruction of Governors Street (including reconstruction of the intersection of Governors Street and Church Street); the construction of an internal loop road, detention basin, operational and amenity shed and water storage tanks at Bundanoon and the extraction of water for removal by road tanker and bottling off-site is determined by the granting of development consent subject to the conditions in Annexure A; and
The exhibits, other than Exhibit O, are returned.

97 To enable the proposed orders to be made, I give the following directions:

The respondent is directed to file settled conditions of consent (both in hard copy and by e-mail to the Court marked for my attention) by the close of business on Thursday 3 September 2009;
The matter is listed for telephone mention before me at 9.00AM on Monday 7 September 2009:
If (1) is complied with, I will vacate the mention and make orders in Chambers; and
Liberty to re-list before me on 2 days notice if the parties are not able to settle any condition to give effect to this decision.

Tim Moore

CITATION:	Tuite v Wingecarribee Shire Council [2009] NSWLEC 1279
PARTIES:	APPLICANT L Tuite RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	11272 of 2007
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION - SECTION 97 APPEAL :-
CASES CITED:	Tuite v Wingecarribee Shire Council [2008] NSWLEC 1315 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
DATES OF HEARING:	16 and 17 April and 12 May 2009
DATE OF JUDGMENT:	24 August 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC INSTRUCTED BY Slade Mainwaring RESPONDENT Mr C McEwen SC and Mr M Staunton, barrister INSTRUCTED BY B. Bilinsky & Co

No	Position adopted	Short reasons
1A(b)	Neither	Dr Martens’ evidence was that there pipe could be moved so that it did not need to be laid in the CRZ of any tree. The condition is to conclude with a full stop after the words “any tree” in the second line.
1A(c)	Neither	The word “upper” is to be deleted and the words “second to the north from the southern end of Osborne Street” inserted after the words Osborne Street where presently appearing. As a consequence, no further definition of the upper manhole is required.
1A(d)	Applicant	There is no explanation as to what the word “independent” would connote or how it would be ensured in this context given that any person fulfilling this function will be employed by the person having the benefit of the consent. It is sufficient to specify the appropriate qualification level given that the council can take action should the condition be breached. This position obtains wherever else this issue arises in the conditions and the word “independent” is to be deleted wherever it relevantly appears.
1A(e)	Council	The expression “whilst ever water is being transported from the site” is imprecise and does not adequately comprehend circumstances under which the development might only operate intermittently. Regular, annual, pruning ensures that an appropriate tree management regime is observed.
1A(f)(i)	Applicant	The sensitive excavation work is only required to be undertaken in areas where there is a critical root zones identified by the arborists during the course of proceedings. It is not required for the full length of Governors Street on both sides.
1A(f)(ii)	Council	The agreement of the arborists related to the protection of the roots using a perforated protective casing. The difference between “metal or similar” and “porous concrete or similar” may end up being a distinction without a difference. However, it is my recollection that there was no discussion about depth alterations once some excavation had been undertaken. I do not consider that I have any evidentiary basis upon which the applicant's position could be accepted and the position proposed by the council is consistent with the arborists’ evidence. It is my recollection that the discussion focussed on metal protection structures.
1A(f)(iii)	Council	Consistent with the position taken immediately above.
1A(g)	Neither	The applicant’s wording in the first proposed change is accepted to the extent that it will conclude after the word “tools” with the word “or” being substituted for the comma between the words “hose” and “hand” and this sentence concluding at that point. The sentence commencing “Where an air ..” proposed to be deleted by the applicant is to be retained. “perforated metal half” is to be retained consistent with my earlier determination. The words commencing with the word “including” proposed by the applicant to be deleted are to be deleted as the resulting condition is less permissive than that proposed by the council and provides greater supervision and protection to trees in this vicinity.
1A(h)	Council	The council's proposed condition is consistent with the agreement reached by the arborists during the course of the site inspection and reflected in the earlier portion of this decision.
1A(i)(ii)	Council	There is no basis upon which to restrict a decline in health in this tree to works within Governors Street. Such a decline in health could also result from the use of the reconstructed Governors Street by the tanker trucks proposed to be utilised by the applicant.
2(a)	Applicant	If an appropriately qualified person has both necessary professional qualifications, it is unnecessary to put the applicant to the expense of having to separate engineers involved.
2(b)	Mixed	Damage assessment for Jackmans Cottage from vibration is not intended to be confined to the construction stage only. Such protection is to extend to all potential vibration causing activities resulting from the proposal including its operation. A vibration expert is the appropriate person to measure such levels.
2(c)	Applicant	Consistent with ensuring that the consent operates in rem rather than in personam.
3	Council	There is no evidentiary basis upon which the applicant's position should be preferred over that of the Council and the council's position is, inherently, likely to be more precautionary.
4	Applicant	Consistent with ensuring that the consent operates in rem rather than in personam.
5	Council	The council's proposed condition is consistent with the evidence given. The deletion of the words after the word “Energy” leaves future volume adjustment in the hands of the licensing department rather than also being governed by the development consent. The provision will thus ensure that planning consideration would also be made of any future alteration to extraction volumes.
6	Mixed	The reasons for the difference between the parties in the first element of this condition are not clear. If the intention is to ensure that the maximum length of the truck will be 19 m; that it will have a minimum of five axles; and that it will be a semitrailer, this is appropriate. Neither condition appears to make this provision. To reflect this understanding of what is proposed, the words should be “a semitrailer with a maximum length of 19 m and a minimum of five axles.” The second set of proposed words is unnecessary as they reflect the law. The logbook should be kept for five years to ensure that there is proper long-term record keeping guaranteeing that the conditions of consent are observed. The requirement to take appropriate action in response to justified complaints is in the public interest and is to be retained. It is my understanding that the principal noise emitting braking systems are exhaust compression braking systems. However, the council's proposal to use a low ratio gear for braking is also appropriate. Hence, this provision shall read “In the descent of Church Street, trucks shall use low ratio gear and shall not use engine compression brakes. Within Governors Street and the development site, trucks shall not use engine compression brakes.”
7	Applicant	The first elements proposed by the applicant to be deleted are repetitions and should be deleted. The second element proposed by the applicant is consistent with ensuring that the consent operates in rem rather than in personam.
7A	Applicant	As I understand it, the original proposed condition was “Council requires that all design plans be prepared to council standards.” This is acceptable. All additional proposed words appeared to be gratuitous advice rather than matters appropriate to be contained in a condition of consent.
9	Applicant	This is gratuitous advice rather than matters appropriate to be contained in a condition of consent.
10	Applicant	This is gratuitous advice rather than matters appropriate to be contained in a condition of consent.
12	Applicant	It is not lawful to impose a bond for engineering works that are located on the applicant's property. The restriction to the engineering works being those “on public assets” is appropriate.
12a	Mixed	The deletion of the word “and” appears to be a sensible grammatic change. The elements that the applicant proposes to delete from the council's version of the condition commencing with the word “without” and concluding with the word “development” should remain. However, the sentence “This obligation is only to apply to any maintenance or repair works or damage caused by the use of the road arising from this consent.” should be added to the paragraph. This revised provision balances the reasonable obligations of the beneficiary of the consent to undertake maintenance with the fact that the requirement should only be for maintenance caused by damage arising from your operation of the consent.
12b	Applicant	This is gratuitous advice rather than matters appropriate to be contained in a condition of consent.
12c	Mixed	The reference to requiring reporting on condition 1A(i)(ii) is unnecessary in light of the terms of that condition. It is reasonable to require that the report include details of the pruning in order to ensure that these activities have been carried out in accordance with the responsibilities of the beneficiary of the consent pursuant to the conditions of consent. The requirement for reporting on condition1A(i)(ii) is unnecessary in light of the terms of that condition. The requirement to provide details of the road maintenance works is reasonable to ensure that the council has the ability to make an enquiry of the contractor if necessary and to understand the rate of maintenance required. The provision of reporting annually should remain a requirement during the life of the development rather than the version proposed by the council or by the applicant. It is reasonable to require that a copy of the reports shall be kept on the premises so that they are readily locally available to any relevant council officer who may wish to examine these after undertaking an inspection in the locality.
14	Neither	These introductory words, however expressed, should apply only to works not the various plans. In addition, the approval process envisaged should be confined to works in the public domain and the obligation to carry out any works should be in rem. The preamble is to read: “The provision, at no cost to the Council, of the works and services in (a)(i), (ii), (iii) and (b)(iii) of this condition with these to be documented and constructed in accordance with Council's Development Control Plan Nos 12 and 41, to the satisfaction of the Development Control Engineer. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE approval is to be obtained for works in any public road and for the connection to Council’s sewer main to be undertaken by submitting adequate documentation including plans, standard notes and completed design checklists, calculations and specifications, to Council which justify that the proposed works are in accordance with all Council's standards and all other relevant Codes and guidelines.”
14(a)(ii)	Neither	The council proposes a dilapidation report for Church Street from its intersection with Governors Street to the intersection with Anzac Street, the main thoroughfare through Bundanoon. The applicant seeks to limit this report to 50 m north of the northern alignment of Governors Street. In the absence of evidence or submissions on this point (and thus having no assistance from the parties on this point), neither position seems reasonable and the dilapidation report for Church Street should be from Governors Street to the top of the hill in Church Street (this being, in my estimation, the element of Church Street potentially subject to additional impact from the trucks as a consequence of the slope involved). To provide certainty, the point should be delineated by reference to the southern boundary on Church Street of Bundanoon Public School.
14(a)(iii)	Mixed	Finishing point for responsibility – see 14(a)(ii) The council should not be required to approve a report. If the council disagrees with the conclusions, that is another matter. No reason has been given why repairs should not be included and it is reasonable that they should be. “Associated with extraction” is potentially wider than mere transportation of water and would encompass trucks use for other purposes associated with the site (construction, tank repair or replacement etc) and thus is to be preferred to the applicant’s proposed words. The works should not be confined to “immediately required repair” works but all works shown as necessary as a consequence of this proposal going ahead. Finishing point for responsibility – see 14(a)(ii)
14(a)(iv)	Mixed	The applicant’s first proposed change (delete “A minimum of” and substitute “At least”) appears to be a difference without a distinction – however, the second version is better flowing use of language and is to be preferred. The applicant’s second proposed change would remove the sewer connection works in Osborne Street from the condition and no reason for such change is advanced and it is therefore rejected. The applicant’s third proposed change is consistent with using language that makes it clear that the consent operates in rem rather than in personam and is accepted.
14(a)(v)	Council	The applicant’s proposed change would remove the sewer connection works in Osborne Street from the condition and no reason for such change is advanced and it is therefore rejected.
14(b)(i)	Applicant	Unnecessary repetition of matters adequately dealt with elsewhere.
14(b)(ii)	Mixed	The applicant’s proposed heading is more accurately reflective of the provision This condition should reflect the definition of the manhole location provided above for the purposes of condition 1A(c).
14(b)(ii)	Neither	This condition number appears twice and the second appearance should be renumbered 14(b)(iii). It is my understanding that only one manhole in Church Street is impacted by this development. If the lid of that manhole does not presently constitute a “heavy duty gatic lid”, it would appear that the parties accept that this should be the case. If reconstruction is required, this should be at the applicant's expense.
15A	Council	This condition in the form proposed by the council is reflective of the agreement reached between the applicant and Mr Miller during the course of the site inspection.
19	Mixed	The first element proposed by the applicant is consistent with ensuring that the consent operates in rem rather than in personam. Providing a time when the summary of assets is to be provided to the council is not unreasonable and the time nominated by the council is reasonable.
20	Applicant	This condition is unnecessary as it is a re-statement of the law.
22	Applicant	The reasons for rejection of the conditions proposed by the Department of Environment and Climate Change are canvassed, briefly, in the principal body of the decision.
23	Applicant	This condition is unnecessary as it is a re-statement of the law.
Notes	Applicant	If the council wishes to supply additional advice to the applicant, it is free to do so. However such advice will not be incorporated as a condition of consent as it is not, in fact, a condition of consent.