Valhalla Village Pty Ltd v Wyong Shire Council - [2009] NSWLEC 1355

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Valhalla Village Pty Ltd v Wyong Shire Council [2009] NSWLEC 1355

PARTIES:
APPLICANT
Valhalla Village Pty Ltd
RESPONDENT
Wyong Shire Council

FILE NUMBER(S): 11054 of 2007

CORAM: Hussey C

KEY ISSUES: SECTION 96 MODIFICATION :- S94 Contributions unreasonable; water/sewer changes unreasonable.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Contributions Plan No 10

CASES CITED: Progress and Securities Pty Limited v North Sydney MC [1988] 66 LGRA 236
Walton v Blacktown City Council [2006] NSWLEC 451
Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41
Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502

DATES OF HEARING: 30 September 2009, 21 October 2009

DATE OF JUDGMENT:
27 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Tomasetti SC
SOLICITOR
P J Donnellan & Co Pty Ltd
RESPONDENT
Mr S Ayling SC
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

27 October 2009

11054 of 2007 Valhalla Village Pty Limited v Wyong Shire Council

JUDGMENT

Background.

1 This appeal is against council’s refusal of a s96 application to modify some of the s 94 and other contribution conditions contained in consent orders made by the Court on 3 December 2008. The consent was for a 424- site caravan park allowing for long-term residency, located at No 25 & 35 Mulloway Road, Chain Valley Bay.

2 The subject contribution requirements were contained in the following condition 20 schedule:

Note 1: The credit column includes application of credit for existing dwelling on Lot 339 as appropriate.

Note 2: The credit column with respect to OS&R Facilities includes a credit for 660m of cycleway @ $215 / lineal metre.

Note 3: Indexation to be applied in future as per applicable contributions plan.

3 The applicant now contends that the quantum of the s 94 contributions in respect of the ‘Open space and recreational facilities’ and ‘Community facilities works’ is excessive because due credit was not given to 42 lots previously approved and not completed. Similarly, the contribution for ‘Water (new sites)’ is also considered excessive.

4 Both parties have referred to the history of the development of this land in order to establish what the appropriate s94 should be. Of relevance, it is agreed that:

Contributions Plan No 10,

Lake Munmorah District**, as amended September 1995

5 Consequently, the applicant contends that credit should be given for these 42 ‘undeveloped sites’ because they were not subject to any s 94 contributions when first approved in 1996. Accordingly, the applicant’s calculations results in the following tabulation of s 94/servicing contributions.

Note 1: The credit column includes application of credit for existing dwelling on Lot 339 as appropriate (Credit value is equal to full Rate).

Note 2: The credit column with respect to OS&R Facilities includes a credit for 660m of cycleway @ $215 / lineal metre.

Note 3: The credit column with respect to OS&R Facilities and Water (new sites) includes 42 credits for sites approved under the provisions of DA163/96A but not constructed. (Credit value is equal to 0.73 x Rate)

Note 4: Indexation to be applied in future as per applicable contributions plan.

6 The merits of the overall application were addressed in the judgement delivered on 3 December 2009. The parties noted that some of the originally approved sites had not been developed in accordance with the approved plans. Consequently, it was agreed by the parties that the non-conformities associated with these 258 sites could be regularised within any approval of a satisfactory overall development, as proposed by the ultimate creation of 424 sites. The Court accepted this approach.

7 The applicant also says that there was an understanding between the parties that the s 94 contributions included in the condition 20 schedule would be subject to further negotiation. But the Court was not made aware of any such agreement. The Court understands that there were some misunderstandings by both parties in this regard.

The submissions

8 In support of its request for a credit, one of the applicant’s submissions is that the judgement described the proposal as for the addition of 166 permanent dwelling sites and ‘the relocation of 41 site “entitlements” from the western part of Lot 274 to Lot 339’. However, that description was taken from the statement of facts and contentions, which was subject to a number of changes during the course of the proceedings.

9 My understanding of the “entitlement” reference - in inverted commas, was that there was a claim or an expectation that the 41 (but actually 42) sites could be incorporated into the overall development, rather than deleting, or reducing them because they were not developed, as approved. Consequently, the merits of this relocation would be assessed in terms of the suitability and overall impact of the proposed 424 sites.

10 Apart from this, I am also aware that it is possible to have a number of different development consents on the same parcel of land. In the current matter, reference was made to the changes made to the approved development layout arising from the existing 258 sites. However the applicant did not agree to a condition to surrender the original consent. Under these circumstances it is possible that the original consent could still be implemented, albeit with alterations to some of the completed sites. Therefore, the applicant could maintain any benefits of the original consents lack of s 94 contributions.

11 My approach to the revised development was to assess the merits of the “new (166)” sites on the basis of the current controls, including the prevailing s94 CP. In the absence of any challenge by the parties, the original and completed 258 sites were considered acceptable. Having considered the merits in detail, I then considered it appropriate that all the “new” sites be subject to the current s 94 CP contributions.

12 In this regard, I am aware that it is common practice for development contribution requirements to be indexed. This generally means that developments undertaken over a longer timeframe will ultimately contribute at a higher rate. Furthermore, where a development is amended and approved, then credit is given for any completed units, new units are subject to the current contributions plan and any revised units where a credit applied, would be incrementally increased to the current contribution rates.

13 Subsequently, aspects of the draft conditions were discussed by the parties, resulting in their agreement to consent orders for the approval to the overall development. The agreement included the payment of s 94 contributions in accordance with condition 20 and the schedule. This was based on the 166 new sites, with credits being given for an existing dwelling on Lot 339 and for 660m of cycleway. As these contributions were in accordance with the Contributions Plan No 10, “Lake Munmorah District”, the Court considered it reasonable to impose them, by way of condition 20.

14 However the applicant now claims that this approach is not in accordance with the s 94 CP and furthermore the contributions are unreasonable. With regard to the first claim, the applicant submits that the 2008 consent only generates a demand for services and amenities for the additional 124 sites. Therefore the contribution amounts should be proportionally reduced.

15 Insofar as some references were made to the s 94 CP classifications of “dwelling units” (DU) and “medium density development” for the calculation of the s94 contributions, I accept that there is some ambiguity with these terms. However, these contribution rates are subject to a reduction factor of 0.73 DU for the subject caravan sites.

16 Notwithstanding this, it appears these contribution rates have been accepted and applied by the applicant, but at the lower number of sites. Accordingly, I accept that this classification system is the designated unit in the s94 CP to apply to the appropriate number of new sites. That is, the only question for the Court is what is the appropriate number of sites to which the contribution rates should be applied.

17 Part of the applicant’s submission is that council is incorrectly applying the s 94 CP because they are endeavouring to address a backlog situation by applying the contribution rate to the previously approved 42 sites. However, I do not accept this because there is no evidence regarding any backlog for services/facilities related to these sites, that the applicant decided not to create.

18 Instead, the revised and approved development is to create an additional 166 sites, most of which are on the adjoining Lot 339, and in a different configuration to the original approval. Therefore, on my understanding of the s 94 CP, it appears that all these sites will be entitled to a similar level future open space, recreational and community facilities.

19 Insofar as the s94 CP is based on certain population growth scenarios and associated services demand, there was no compelling evidence presented by the applicant regarding changes to these s94 CP provisions, which would make them unreasonable to impose.

20 There was however reference to the provisions of section 9.1 dealing with future community facilities, particularly the approach to establishing the requirements, which includes:

Identify requirements to service existing population, future single dwelling development on existing allotments for which no contributions can be sought and developments for which consent has already been issued.

21 My interpretation of this control is that it makes allowances for circumstances where there is an existing lot that is not subject to contributions and other approved developments. In the subject case, the applicant has decided not to fully implement the consent, which has the benefit of the zero community facilities contribution and instead apply for a different consent. In these circumstances, I consider it reasonable to incrementally increase the s94 contributions from the situation existing some 12 years ago to the current s 94 CP in respect of all new sites/units.

22 Another aspect of the applicant’s claim is for a reduction in the public open space contributions. The approach to establishing the contribution requirements is contained in s 9.2 of the s94 CP and includes:

Identify requirements to service existing population and future and future single dwelling development on existing allotments for which no contributions can be sought.
Determine land requirements, if any, needed for future medium density developments…

23 As previously stated my assessment is that it is reasonable to consider any application on the basis of the current controls at the time of determination. Planning controls are of a dynamic nature and generally reviewed in light of changing circumstances. Whilst no s94 contribution was required in 1996, nevertheless the current s94 CP requires medium density development (including caravan parks as adjusted by the 0.73 factor) to contribute towards these facilities.

24 The other part of the applicant’s submission is that the contribution is unreasonable in the circumstances of the case. The basis for this claim is that the “42 undeveloped sites” should retain their credit status because the applicant is giving up the entitlement to develop these remaining 42 sites on lot 274 in return for being able to build 166 sites on lot 339, so the net difference in demand terms is 124 sites. But it does not appear that the opportunity to develop these lots has been given up because the consent has not been surrendered.

25 However, I do not consider this a reasonable proposition. For whatever reasons that applied at the time, the 1996 consent was not subject to any s 94 contributions for the nominated facilities. Reference now to the prevailing 2006 s 94 CP and the current “Northern Districts Contributions Plan” indicates a degree of uncertainty in projecting future population growth and associated demand for facilities.

26 Nevertheless these controls still indicate that s 94 contributions are required for these facilities, in respect of each new dwelling unit. In the absence of any compelling evidence that these facilities are not required, I consider it reasonable to apply the s 94 CP provisions so that each new development site now makes the scheduled contribution.

27 Likewise, in the absence of any substantive challenge to the general provisions of the s94 CP, I am satisfied that its contribution rates should be applied because I do not consider the applicant has demonstrated that the any of the proposed new lots, i.e. previously approved 42 sites, does not create any demand for these facilities.

28 In any case, I consider it reasonable to incrementally update any previously approved units, which in this case means the credit of zero is incrementally upgraded to the current rates. Accordingly, I am now satisfied that it is reasonable to apply the current contribution rates for all the proposed new sites, by way of any fresh consent.

29 In support of council’s position that the full contribution for 166 sites be maintained, part it’s submission is that the modification application should not be entertained unless the applicant can demonstrate some ‘change of circumstances’, which justifies the modification to the conditions. In this regard reference is made to Progress and Securities Pty Limited v North Sydney MC [1988] 66 LGRA 236, where His Honour Justice Bignold referred to the benefits and burdens of a consent, indicating that there should be some demonstration of a ‘change in circumstances’ where a modification is sought.

30 Insofar as I have considered this submission, and whilst I do not consider any change of circumstances has been identified from the time of granting the consent orders, I do not give this any weight in this modification application. Instead, I have considered the merits of the application.

31 Mr Ayling also referred to the matter of Walton v Blacktown City Council [2006] NSWLEC 451 where His Honour Preston CJ said:

58 First, as a matter of discretion, the Court would refuse the application because there has been no change in circumstances from the time of the Court’s decision on 19 April 2006 to date which would justify modifying the consent. Each of Mr and Mr Walton’s proposed modifications were either argued or able to be argued at the hearings of the s 97 appeal before Commissioner Moore. Mr Kelso cited the cases of Progress and Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236 and International Trucks Australia Pty Limited v Blacktown City Council [1997] NSWLEC 56 (16 March 1999) at [15] - [18]…

64 An application under s 96 of the EPA Act is not the appropriate vehicle to seek a re-hearing on the merits of a decision of the Court on a s 97 appeal, unless there has been some material change in circumstance or something has been revealed which was not known at the time of the hearing of the s 97 appeal: see generally Progress and Securities v North Sydney Municipal Council (1988) 66 LGRA 236 at 243, 245 and 246.

32 Applying this line of authority, as I have previously stated that there was no demonstration of any material change in circumstances or something revealed that was not known at the time of final submissions for the consent orders. If the credit for the 42 sites was sought, the merits of this situation could have been dealt with in the original hearing prior to agreeing to the consent orders. However, as previously stated, I have not applied this approach to the subject application.

33 Against this, I have also considered Mr Tomasetti’s alternate submissions resulting from the authority in Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41, which stated:

83 Contrary to what is stated in the headnote I do not read Bignold J’s decision as refusing to follow the observations of Lord Scarman. But however that may be it is, in my opinion one thing to assert that a party who has accepted the benefit of a transaction must also accept its burden, it is quite another to conclude that a condition not authorised by law cannot be challenged if the development has been carried out. The discretion of the Court derives from the Act and cognate legislation and not from equitable doctrines. In planning law there is an evident practical difficulty in attempting to apply the “benefit/burden” doctrine as, for example, where a third party challenges the validity of a development consent which may have been imposed without lawful entitlement consequent of an arrangement being entered into between a developer and a council.

34 Also the reference to the matter of Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502 where Her Honour Justice Jagot said:

68 The Council submitted that the discretionary power in s 94B(3) of the EPA Act should not be exercised in the applicant’s favour (if condition 69 was found to be unreasonable to any extent) because the applicant had taken the benefit of the development consent knowing about the s 94 contributions payable and, thereafter, had modified the development consent without, until recently, raising any issue about the s 94 contributions. The Council said that there had been no change of circumstances since the grant of development consent. Hence, the facts were analogous to those in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGERA 236, where Bignold J (at 245) found that although the power in s 102 (then the relevant modification power) was not limited to cases in which circumstances had changed, a discretionary consideration that weighed strongly against granting the application in that matter was the conduct of the applicant in accepting the benefit of the development consent, and then belatedly seeking to avoid the burden imposed by that consent. Bignold J determined that it would be contrary to the public interest to enable the particular consent in that matter to be modified as sought.

69 In Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41, Cripps AJA (with whom Spigelman CJ and Santow JA agreed) observed (at [82] to [84]) that it was one thing to assert that a party who has accepted the benefit of a transaction must accept its burden, and another to conclude that a condition not authorised by law cannot be challenged if development is carried out. Delay may be a relevant discretionary factor, but there is evident difficulty in attempting to apply any “benefit/burden” doctrine in planning law.

70 In this case, the Court granted the development consent. It seems to me there may be many reasons why, in that context, an applicant may not place in issue the s 94 contributions during the s 97 appeal. I do not consider that an applicant, thereafter, is necessary precluded from seeking to modify s 94 conditions by not having raised the issue during the s 97 appeal. Further, the applicant became aware, only relatively recently, that the Council itself had agreed to the modification of a s 94 condition imposed on a nearby development, which reduced the overall s 94 contributions payable by some 25%. The applicant said that, if necessary, that fact itself constituted a relevant change of circumstances. Consistent with the reasoning in Progress and Securities, I agree that the applicant need not point to any change of circumstances in order to modify the development consent. In the particular circumstances of this case, I can see no reason why I would not exercise my discretion in favour of the applicant, having found that, to a certain extent, condition 69 is unreasonable.

35 Having considered these authorities, I am satisfied it is appropriate to follow the authority stated by Jagot J and consider the merits of the s94 contributions. Although, I express some surprise that the modification relates to consent orders relating to the substantial s 94 contributions, which were confirmed by the parties.

Conclusions

36 Having considered the evidence and submissions, I am satisfied firstly that this s 96 application to modify the consent orders of 3 December 2008 relates to substantially the same development.

37 With regard to the merits of the application, I note initially that the applicant has the benefit of consent for 300 long-term caravan sites on Lot 274, without any requirement for s 94 contributions, even though there was a form of s 94 CP in place at time in 1996. However the applicant has decided not to fully implement this consent by completing only 258 sites and in a somewhat different form to that approved.

38 Accordingly the applicant has decided to expand the caravan park onto the adjoining lot 339 to thereby create a different site layout, containing an additional 166 new sites. Insofar as reference was made to an “entitlement” to transfer the ‘undeveloped’ 42 sites, I considered this on the basis that there was an opportunity or expectation that this number of sites could be incorporated into the new development application, which would then be considered on its merits.

39 As the new development application is of an expanded and different form, the merits would be considered in terms of the suitability of the site to accommodate the proposed overall development and the current demand for services and facilities. It is possible that the access and servicing requirements for the new site layout could require different conditions to those existing on the original approval. Under these circumstances, I consider it appropriate to impose reasonable conditions that are consistent with the prevailing development controls.

40 On this basis, the prevailing s 94 CP requires a contribution in respect of each new site towards open space, recreational and community facilities. Based on the submissions made, there was no compelling evidence that any of the “new” 166 sites should be excluded from the current s 94 CP. It appears to me that all of the occupants from these new 166 sites could have an expectation of access to a similar standard of these facilities listed in the s 94 CP.

41 Consequently, I do not consider it reasonable to exercise the Court’s discretion to effectively waive the current contribution towards these facilities, in respect of the 42 sites for which no contributions were paid that have been effectively abandoned by the applicant. This part of the application should be dismissed in my opinion because I do not consider it reasonable that the provisions of the current s94 CP should be set aside.

42 The other aspect of the modification concerned the developer contributions to water facilities (new sites) and sewerage. This was subject to further negotiations between the parties and agreement reached that contributions be required, in accordance with council’s s306 letter of 8 October 2009. I accept that these agreed contributions are a reasonable modification.

43 The Court orders that:

Water supply contribution - $329,344.40.
Sewerage contribution - $703,365.62.
The s 94 contributions towards open space, recreational and community facilities to be retained as stated in Attachment A.

3 The exhibits be returned.

______________________

R Hussey

Commissioner of the Court

Attachment “A”

Conditions of Consent

Valhall Village Pty Ltd v Wyong Shire Council

25 & 35 Mulloway Road, CHAIN VALLEY BAY
Lot 274 DP 755266 and Lot 339 DP 755266

Modified by the Land and Environment Court 27 October 2009

Description of Proposed Development

Caravan park providing a total of 424 long-term dwelling sites, connection of existing and proposed sites to sewer system, construction of internal roads and drainage, approval of community facilities, creation of permanent environmental protection area and associated works.

Conditions

a. Masterplan Project No 19302, plan number J01 Revision H (as amended) dated 26 June 2008 prepared by Trehy Ingold Neate;

b. Concept Sewer Main Route, plan number EA01 Revision A dated 20 May 2008 prepared by Trehy Ingold Neate;

c. Concept Landscape & Habitat Restoration Plan (14 pages and 3 sheets) project No 0500, Issue A dated 19 September 2008, prepared by RPS Harper Somers O’ Sullivan & Moir Landscape Architecture;

d. Concept Stormwater Management Plan, Job No. 19302 dated 19 September 2008 prepared by Trehy Ingold Neate;

e. Pool Amenities Plan, project number DS 2008/02 sheets A01-A03 dated 22 September 2008 prepared by Parkwood Homes;

f. Maintenance Shed Plans, Job No JAAUa1111280904 prepared by Steel Modular Systems; and

Prior to Release of Construction Certificate:
The following conditions must be satisfied prior to the release of any Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate Application. Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein.

2 Stormwater is to be managed in accordance with Stormwater Management Plan entitled Amended Stormwater Management and Water Quality Report dated 19 September, 2008 prepared by Trehy Ingold and Neate.

a Any retention pond design shall include appropriate detail demonstrating how overflows are to be managed and conveyed to Karignan Creek;

b suitable interim measures to be provided on-site to sustainably manage stormwater prior to the decommissioning of the existing sewer treatment plant and proposed stormwater management methods;

d no stormwater is to be directed to Mulloway Rd, such water should be retained or redirected onsite.

e measures to ensure post-development flows to the retained and revegetating Endangered Ecological Community are able to maintain and enhance pre-development flows, particularly with regard to wetting and drying cycles, water quality and impacts on the habitat of the Wallum Froglet;

The CMP must be certified by a suitably qualified and experienced person capable of managing all relevant construction facets in the CMP (including traffic management, erosion and sediment control, tree protection, environmental management etc) prior to issue of any Construction Certificate, approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

The CMP is to include a Traffic Management Plan and/or Plan of Management for any works that impact on any public roads and public land for the construction phase of the development, including any works or deliveries that impact the normal travel paths of vehicles, pedestrians or cyclists or where any materials are lifted over public areas. The Traffic Management Plan and/or Plan of Management must be separately approved by Council as the Roads Authority prior to the commencement of any works.

The CMP is to incorporate control of soil erosion on the site and the prevention of silt discharge into drainage systems and waterways in accordance with the NSW Landcom Managing Urban Stormwater Soils and Construction , 2004 and Development Control Plan 2005, Chapter 67 – Engineering Requirements for Development. The erosion and sedimentation control design plans must be separately approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

The amended LP shall be approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

5 Replanting of a minimum of 300 trees comprising Eucalyptus robusta, Corymbia gummifera, Eucalyptus haemastoma and Angophora costata shall be undertaken within the Environmental Protection Area to the south of the site. This shall be focussed on replanting the cleared areas in the southern section of the site to create a viable corridor of native vegetation. In addition, a suitable combination of shrub layer and groundcover plants (consistent with the assemblage of species in the adjacent intact swamp forest and woodland communities) is to be provided in conjunction with bush regeneration techniques. A suitable plan and work schedule demonstrating how this will be achieved shall be approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

The vegetation and water quality monitoring program is to ensure that the water quantity and quality is consistent with the approved SMP and desired environmental outcomes. The vegetation and water quality monitoring program must include quarterly reports to be provided to Council for a 12 month period from commencement of construction, and annual reports to be submitted to Council for the remaining four (4) years on the anniversary date.

If the vegetation and water quality monitoring program shows that the stormwater and vegetation management outcomes are not being achieved, a revised program is to be submitted to Council for approval and implemented within three months of the date of receipt of the report. Such a process is to be consistent with the principles of adaptive management.

a. Decommissioning and filling of existing treatment pond 1 will include substantial revegetation in accordance with the principles of the Habitat Restoration Plan.

b. A new fence is to be constructed (generally as shown on Masterplan Revision H as amended) to the South of the retained ponds, a maximum 1.0 metres from the top bank of these ponds. Fence to be a maximum height of 1.5 metres (No barbed-wire to be used).

a. Bollards a maximum of 1.5 m apart and joined by chain, or an alternative method of permanently excluding all vehicles shall be provided along the UIA/APZ boundary as shown on Masterplan Project No 19302, plan number J01 Revision H (as amended); and

b. stormwater infrastructure as detailed in the SMP; and

Eucalyptus robusta, Corymbia gummifera, Eucalyptus haemastoma

Angophora costata

eucalyptus haemastoma

Fencing within the Mulloway Road Buffer (MRB) shall be1.5m high metal palisade pool type fencing or similar (black or green in colour), located 1.5 m inside the boundary and screened with plantings detailed for the MRB in the amended Habitat Restoration Plan. Gates servicing emergency egresses to Mulloway Road from Lots 274 & 339 DP 755266 are to be fitted with suitable locks enabling access for Rural Fire Service personnel.

A suitable plan and works schedule demonstrating how this will be achieved shall be approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

11 All primary works (civil, drainage infrastructure, primary weeding, primary planting etc) in the habitat restoration area shall be completed in accordance with the approved HRP and required works programs, prior to the siting of any mobile homes on proposed Sites 301-466.

12 All restoration/regeneration areas detailed in the amended HRP shall be maintained for a minimum of 3 years. Reports are to be submitted to Council detailing the progress of the environmental restoration/regeneration works twice per year. A final report certifying the completion of all works detailed in the approved HRP including those areas designated as Mulloway Road Buffer (MRB) area and Open Space (Retained Vegetation) on Masterplan Project No 19302, plan number J01 Revision H (as amended) is to be provided to Council by the Principal Certifying Authority at the end of the three year period from the commencement of works.

13 Effective landscaping shall be provided along the western boundary of Lot 274 DP 755266, with a particular focus on screening existing infrastructure (carport, sheds, waste management area, turning areas etc) from the adjacent Lot 273 DP 755266. Landscaping measures in this area should provide substantial vegetation screening at all levels (groundcover, shrub layer and canopy trees) for approximately 3m from the boundary and provision of suitable canopy trees for the remainder of the area.

14 Effective landscaping shall be provided adjacent to the eastern boundary of Lot 339 DP 755266 including suitable landscape treatments to minimise the visual impact of the proposed maintenance shed and community facilities, and extensive planting of canopy trees (approximately 80 trees) within the approximately 300m long Asset Protection Zone along the eastern boundary of Lot 339. Detail of numbers, species and planting locations are to be provided along with detail of existing trees proposed for removal. Canopy tree species should be native to the site and selected from the “Keystone Species” identified within Council's DCP 2005 Chapter 14 - Tree Management.

Certificates / Engineering Details

15 A Construction Certificate is to be issued by the Certifying Authority prior to commencement of any works. The application for this Certificate is to satisfy all of the requirements of the Environmental Planning and Assessment Regulation 2000.

16 All w ater and sewer works, or works impacting on water & sewer assets, are to be designed and constructed to the requirements of Wyong Shire Council as the Water Supply Authority under the Water Management Act 2000 within three years of the date of issue of Construction Certificate, and prior to the placement of any mobile home on proposed sites 301-466. The requirements of Section 306 of the Water Management Act 2000 which apply to this development are detailed in the Section 306 requirements letter attached to this consent. All works required in the Section 306 letter must be shown on the design plans. The design plans must be submitted to and approved by Council prior to the issue of a Construction Certificate.

17 Sewer contributions for the 258 existing long-term sites payable to Wyong Shire Council as the Water Supply Authority under the Water Management Act 2000 may be paid over three years. The contribution is to be made in three annual payments, with the first payment due prior to issue of any Construction Certificate. The remaining two payments are due and payable on the anniversary of that date for the following two years. A suitable Deed of Agreement will be required to be finalised between Council and the applicant to manage the contribution payments. The payments are to be indexed in accordance with Council’s standard construction costs index.

A detailed decommissioning proposal is to be submitted to, and approved by, Council prior to the commencement of these works. The proposal is to demonstrate that compliance with the requirements of Councils Policy P1 - Potentially Contaminated Land and State Environmental Planning Policy No. 55 – Remediation of Land can be achieved, and that any retained pond (s) will be suitable for the proposed usage of stormwater retention, treatment and reuse.

19 Within six months of the completion of the decommissioning process a detailed report is to be provided to Council by a suitably qualified and experienced site auditor. The report is to clearly demonstrate compliance with ANZECC guidelines and “Managing Urban Stormwater – Harvesting and Reuse” (DECC, 2006) to ensure water flowing to Karignan Creek or used for non-potable purposes meets the appropriate standards.

Contributions

20 The payment to Council of contributions (as contained in the attached Schedule) under Section 94 of the Environmental Planning and Assessment Act and Council’s Contribution Plan. Council’s contributions are adjusted on the first day of February, May, August and November. The amount of the contributions will be adjusted to the amount applicable at the date of payment.

Dilapidation

21 A dilapidation report must be submitted to Council prior to issue of a Construction Certificate. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development.

Roads

22 Separate approval from Council as the Roads Authority must be obtained under Section 138 of the Roads Act 1993 prior to the issue of any Construction Certificate which includes any works within a Council road reserve. For any such works, design plans must be submitted to and approved by Council prior to issue of the Construction Certificate.

a. Provision of swale drains and grass verge within Mulloway Road adjacent to the entire frontage of the development and providing suitable transitions to the existing entry works at the frontage of Lot 274. The swale drains are to be designed consistent with the principles of Water Sensitive Urban Design and suitably transitioned to stabilise the carriageway pavement edge; and

b. A bus bay consisting of an indented asphaltic concrete pavement with a suitable base course is to be constructed on the southern side of Mulloway Road, generally in accordance with the location shown on the approved Masterplan Project No 19302, plan number J01 Revision H (as amended). A suitable bus shelter is to be provided within the road reserve on the southern side of Mulloway Road. The location of the bus bay and shelter are to avoid removal or damage to any tree within the road reserve, as far as possible. The bus bay is to be linked to the internal road system via a suitable footpath. The bus bay is to be constructed with appropriate tapers and transitions. Design plans for works are to be incorporated in the design for other roads and stormwater systems required for this development. Design plans must be approved by Council prior to issue of any Construction Certificate; and

c. Bus stop signs shall be provided on both sides of Mulloway Road in suitable locations to minimise tree damage or removal; and

d. An emergency egress is to be provided generally in the location shown on the approved plans. The egress is to provide a suitable 2 wheel drive, all weather surface and a trafficable transition to Mulloway road incorporating pipe and head wall arrangements if required; and

The shared path shall be constructed generally in accordance with Council's draft Cycleways Strategy and DCP 2005 Chapter 67 - Engineering Requirements for Development. The shared path design is to be 2.5 metres wide and is to include a minimum 100mm concrete path with F72 reinforcement and is to be constructed on 75mm compacted roadbase and on compacted subgrade. Suitable transitions to Mulloway Rd are required adjacent to the main entry of the development, and opposite Trevally Ave. The design plans must be approved by Council prior to issue of the Construction Certificate.

24 The design and construction of all internal roads, drainage and civil works in accordance with Council's Development Control Plan 2005 Chapter 67 - Engineering Requirements for Development, which are prescribed at the time of commencement of engineering works. The design plans, including an overlay of the vegetation plan identifying trees to be retained as per the approved development plans, and any trees to be removed must be approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

25 Stormwater drainage works discharging from the site into a public system or public land or waterways require approval from Council under Section 68 of the Local Government Act. The extent of work must be determined by Council prior to issue of a Construction Certificate. All works are to be designed and constructed in accordance with Council’s Development Control Plan 2005 Chapter 67 - Engineering Requirements for Development. Design plans must be approved by Council prior to issue of the Construction Certificate.

Trees

27 Council’s Development Ecologist is to be notified as soon as practicable (and not more than 24 hours after) if a breach of any ecological protection conditions occurs.

a. Trees and native vegetation proposed for retention are to be clearly identified on all final approved engineering plans.

b. Trees and vegetation within the Mulloway Road Buffer and the swamp forest Environmental Protection Area are to be protected by the erection of 1.8 metre-high man-proof fencing as per the consulting arborist and ecologist’s direction and maintained in good working order for the duration of the works.

c. The consultant ecologist is to determine trees and other vegetation to be retained in Asset Protection Zones, with a focus on retaining vegetation/habitat while still meeting bushfire requirements. Trees and clumps of understorey to be retained in the Asset Protection Zones and all trees in Open Space (Retained Vegetation) areas are to be protected by exclusion fencing in accordance with the Tree Protection Zones and methods specified in Council’s Development Control Plan 2005 Chapter 67 under the consulting arborist and ecologist’s direction. All fencing is to be maintained in good working order for the duration of the works.

The Consultant Ecologist’s Report is to be submitted to and approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

e. All fenced tree protection areas and are to be clearly marked as "No Go Area" on all final approved engineering plans.

f. All fenced tree protection areas and are to be clearly marked with signs stating "No Go Area" on the fencing itself. No clearing of vegetation or storage of vehicles, fill or materials or access is to occur within No Go Areas.

g. The consultant arborist/ecologist may require other habitat and/or trees to be protected via fencing from time to time. This fencing is to be erected at the appropriate root zone protection limits (as determined by the consultant arborist / ecologist), prior to works being carried out around that particular habitat or tree.

h. The management protocols and requirements within these conditions relating to tree and vegetation retention, protection and rehabilitation are to be included in all contract documentation, plans and specifications used by each civil contractor and sub-contractors. All vegetation protection measures shall be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised and landscaped to the satisfaction of the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate.

29 No clearing of trees within areas designated on the approved plans as either Communal Open Space or Open Space (Retained Vegetation) is permitted without separate approval from Council’s Tree Assessment Officer, other than those specifically identified for removal in the approved Habitat Restoration Plan or Landscape Plan.

30 No clearing or vegetation modification is permitted in the areas designated as Open Space (Retained Vegetation) on the approved plans apart from any rehabilitation works required by the approved Habitat Restoration Plan.

31 Clearing of the site shall be undertaken in accordance with the protocols outlined in the document “Additional Information for Development Application” prepared by Conacher Travers (July, 2006) except where modified by these conditions.

32 A minimum of twenty-five nestboxes shall be provided in retained areas of vegetation in accordance with the procedure outlined in the document “Additional Information for Development Application” prepared by Conacher Travers (July, 2006). All nest boxes are to be erected prior to the issue of a Construction Certificate and at least one month prior to vegetation clearance on the site. The monitoring of nest boxes to determine their usage and to carry out repairs or replacement (as required) twice per year for a minimum period of 3 years following erection. Monitoring reports are to be forwarded to Council after each monitoring event.

33 A suitably qualified consultant shall provide detail to the satisfaction of the Principal Certifying Authority will or regarding the drainage of washwaters from any covered bin bay area to ensure compliance with the requirements of the Protection of the Environment Operations Act, 1997 prior to issue of a Construction Certificate.

Prior to Commencement of Works:
The following conditions must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal.

Approved Plans

35 All stormwater works are to be completed in accordance with the approved Stormwater Management Plan prior to the siting of any mobile homes on proposed Sites 301-466.

Building Code of Australia

36 Compliance with the relevant provisions and requirements of the Building Code of Australia.

Demolition

37 Building demolition work is to be carried out in accordance with the requirements/ provisions of the AS 2601 - 2001 - The Demolition of Structures.

38 Prior to the demolition and / or removal of existing structures on site, all existing services are to be disconnected, sealed and made safe. The septic tank, absorption trenches and water service is to be disconnected by a licensed plumber and drainer. It is an offence to remove the water meter from the site. A Start Work Docket must be submitted to Council and Council's Plumbing and Drainage Inspector must certify that the works have been undertaken to the satisfaction of Council.

39 The disposal of any asbestos materials in accordance with the requirements of Workcover NSW and AS 2601 - 2001 - The Demolition of Structures.

Erosion and Sediment Control

40 The display of an appropriate sign to promote the awareness of the importance of the maintenance of sediment control techniques on the most prominent sediment fence or erosion control device, for the duration of the project. Note: On-the-spot fines may be imposed by Council for non-compliance with this condition.

* be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.

* No site works are to commence until the sediment control installation has been inspected and approved by the Principal Certifying Authority. At least 48 hours notice is to be given for the inspection of such works.

Record of Inspections Carried Out

the development application and construction certificate number;
the address of the property at which the inspection was carried out;
the type of inspection;
the date on which it was carried out;
the name and accreditation number of the certifying authority by whom the inspection was carried out; and
whether or not the inspection was satisfactory in the opinion of the certifying authority that carried it out.

Other Authorities

43 Compliance with the recommendations of the NSW Rural Fire Service dated 10 January 2007 (copy attached), except where these recommendations differ from specific requirements of Council detailed elsewhere within the development consent conditions.

Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments;
AGL Sydney Limited for any change or alteration to gas line infrastructure;
Energy Australia for any change or alteration to electricity infrastructure or encroachment within transmission line easements;
Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure.

General

45 Any works (other than habitat restoration works in accordance with the amended Habitat Restoration Plan) that may be carried out within 40m of Karignan Creek require a Controlled Activity Approval from the Department of Water and Energy as required by Part 3 of the Water Management Act 2000. All works are to be conducted in accordance with any such Approval granted.

Environmental protection

46 The mulch/tubgrindings generated from the removal and thinning of native trees associated with the development is/are to be re-used in restoring the habitat protection areas as required.

47 Any natural hollows removed by the development are to be placed wherever possible as ground hollows within retained bushland under the supervision of the consulting ecologist.

48 Any plant stock used in revegetation will be supplied from provenance specific seed/material collected from within the local catchment area. Non-provenance specific material is prohibited.

Prior to Occupation:
The following conditions must be satisfied prior to the siting of any mobile homes on proposed Sites 301-466.

49 The obtaining of a Section 307 Certificate under the Water Management Act 2000 from Wyong Shire Council as the Water Supply Authority prior to the siting of any mobile homes on proposed Sites 301-466.

50 Arrangements being made with Energy Australia, Australian Gas Light Company and Telstra for the supply of services concurrent with the development. Arrangements are to include relocation of existing mains and services and dedication of easements for mains and services. A letter of clearance from each relevant authority is to be provided to the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate prior to the siting of any mobile homes on proposed Sites 301-466.

51 At the completion of construction an Engineer’s Certificate shall be submitted prior to the siting of any mobile homes on proposed Sites 301-466 stating that all internal civil works, drainage and road works have constructed in accordance with the Construction Certificate and Wyong Shire Council’s Design and Construction standards.

52 A Works-as-Executed plan prepared by a registered surveyor must be lodged with Wyong Shire Council when the engineering works are complete, prior to the siting of any mobile homes on proposed Sites 301-466.

Consolidation plans

a. S.88B restriction to user covenant denoting all areas shown on the approved development plans as Open Space (Retained Vegetation) and the full extent of the Mulloway Rd Buffer Area on Lot 274 DP 755266 (generally 40m south of the boundary) as “Environmental Protection Areas”, and prohibiting all works, uses and activities on “Environmental Protection Areas” with the exception of passive recreation and environmental restoration/management. This is to clearly state that no clearing, underscrubbing, fuel reduction (other than approved hazard reduction burning), erection of structures, agriculture, keeping of livestock, active recreation, boundary adjustments or similar activities are permitted;

b. S.88E public positive covenant requiring the “Environmental Protection Areas” to be maintained for ecological purposes including preservation, protection and enhancement of the environment in accordance with the approved Habitat Restoration Plan.

Roads

54 All kerb and gutter and road construction works must be certified as satisfactorily completed by Council under the Roads Act, as the Roads Authority, prior to the siting of any mobile homes on proposed Sites 301-466.

Stormwater

55 All drainage works for the development must be approved by the Principal Certifying Authority and a copy submitted to Council in conjunction with a copy of the approved Construction Certificate, prior to the siting of any mobile homes on proposed Sites 301-466.

56 The stormwater system with water quality control facilities to treat stormwater runoff from the development must be approved by Council under Section 68 of the Local Government Act prior to the siting of any mobile homes on proposed Sites 301-466.

57 All stormwater drainage works discharging from the site into a public system or public land must be approved by Council prior to the siting of any mobile homes on proposed Sites 301-466.

Swimming Pools

58 Prior to the pool being filled with water, the swimming pool, safety fences and gates being installed in accordance with the approved plans and specifications and the Swimming Pools Act 1992 and Regulations and AS 1926 - 1986 including the display of an approved sign regarding pool safety and resuscitation techniques.

59 The disposal of filter backwash to the sewer in a manner that will not cause a nuisance or where sewer is not available, the disposal of filter backwash into a rubble absorption trench as identified on the approved development plan.

Vehicular Access and Parking

60 The rectification of any damage to the footpath, including damage to any street trees or kerb and gutter, at no cost to Council prior to the siting of any mobile homes on proposed Sites 301-466.

Waste Management

Floors must be constructed of concrete, graded and drained to an approved drainage outlet connected to the sewer and finished to a smooth even trowelled surface;
Walls must be constructed with solid impervious material and shall be cement rendered internally to a smooth even steel trowelled surface;
All intersections between the walls and floors must be coved with coving having a minimum radius of 25mm;
All entry points into the room must be bunded to prevent the escape of liquid waste. Bunding shall be for 110% of the likely liquid storage waste and constructed in such a manner that does not obstruct the removal of waste receptacles from the room or create a safety risk to users;
Adequate ventilation shall be provided;
Adequate lighting must be provided;
The ceiling must have a minimum height of 2.1m from floor level and be finished with a smooth faced non-absorbent material capable of being easily cleaned;
Waste storage areas are to prevent the access of vermin;
Waste receptacles used must be compatible with Wyong Council’s waste collection service;
The door to the storage area must be weatherproof and be openable from the inside at all times;
Hot and cold water hose cocks must be located inside or within close proximity to the waste storage areas to facilitate cleaning.

Ongoing Operation:
The following conditions must be satisfied during ongoing use / occupation of the development.

Advertising Signs

62 No advertisement is to be erected on or in conjunction with the development without prior development consent unless the advertisement is an ‘approved sign’ under Council’s Advertising Signs Development Control Plan 2005 - Chapter No 50 - Advertising Signs.

Stormwater

63 All stormwater conveyance, treatment and storage devices (including drainage systems, sumps and traps) being regularly maintained in order to remain effective.

Waste Management

64 Compliance with the Waste Management Plan submitted with the application, or as modified by Council, in accordance with Development Control Plan 2005 Chapter No 69 - Controls for Site Waste Management.

Other Requirements

65 The total number of dwelling sites shall not exceed 261 on Lot 274 DP 755266 and 163 on Lot 339 DP 755266.

Environmental Protection Areas are to be actively maintained for a minimum of three (3) years from the implementation of the consent. Reports are to be submitted to Council detailing the progress of the bush regeneration works twice per year during this period, with a final report certifying the completion of all works required by the Habitat Restoration Plan at the end of the three year period.

67 All Environmental Protection Areas (including areas shown on the approved plans as “Open Space (Retained Vegetation)) are to be actively maintained for the life of the development for the purpose of environmental preservation, protection and enhancement. All works, uses and activities with the exception of passive recreation are prohibited in the Environmental Protection Areas.

68 All landscaping works are to be completed in accordance with the approved Landscape Plan. Landscaping works to the eastern and western boundaries are to be completed prior to the siting of any mobile homes on proposed Sites 301-466. All landscaping are to be maintained for the life of the development.

69 All areas shown on the approved development plans as “Communal Open Space” are to be maintained for community purposes for the life of the development, and prohibiting any development or use of that land for purposes other than provision of community or recreational facilities.

a. R2.5 or greater in the entire ceiling adjacent to roof space; and
b. R1.5 or greater in the external walls.

73 Asset Protection Zones shall be regularly maintained to ensure their effectiveness in the event of a fire and that certification be provided to Council every three (3) years that this has been complied with.

77 Transportation of re-locatable homes shall be only undertaken during the hours of 9.00 am and 2.30 pm Monday to Friday.

78 Four daily bus services to community and shopping facilities (to and from the site for each service and/or courtesy car), depending on demand, shall operate Monday to Saturday.

Condition 20 Schedule

Modified by the Land and Environment Court 27 October 2009

Additional credit provided for 42 sites approved under DA/163/1996/A but not constructed.

Note 1: A credit has been applied for the existing dwelling on Lot 339 DP 755266

Note 2: 0.73 DU applies to caravan park sites

Note 3: A credit has been permitted with respect to Open Space and recreational Facilities in exchange for construction of 660 m of concrete cycleway as per consent conditions. The credit provides for $215 per lineal metre of cycleway.

R Hussey

Commissioner of the Court

R Hussey

Commissioner of the Court

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Citations

Valhalla Village Pty Ltd v Wyong Shire Council [2009] NSWLEC 1355

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

2

Walton v Blacktown City Council [2006] NSWLEC 451

Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41

Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502

CITATION:	Valhalla Village Pty Ltd v Wyong Shire Council [2009] NSWLEC 1355
PARTIES:	APPLICANT Valhalla Village Pty Ltd RESPONDENT Wyong Shire Council
FILE NUMBER(S):	11054 of 2007
CORAM:	Hussey C
KEY ISSUES:	SECTION 96 MODIFICATION :- S94 Contributions unreasonable; water/sewer changes unreasonable.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Contributions Plan No 10
CASES CITED:	Progress and Securities Pty Limited v North Sydney MC [1988] 66 LGRA 236 Walton v Blacktown City Council [2006] NSWLEC 451 Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502
DATES OF HEARING:	30 September 2009, 21 October 2009
DATE OF JUDGMENT:	27 October 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC SOLICITOR P J Donnellan & Co Pty Ltd RESPONDENT Mr S Ayling SC SOLICITOR HWL Ebsworth Lawyers