Wilson v Great Lakes Council

[2005] NSWLEC 420

Land and Environment Court

of New South Wales

CITATION:

Wilson v Great Lakes Council [2005] NSWLEC 420

PARTIES:

APPLICANT
R L Wilson and C S Wilson

RESPONDENT
Great Lakes Council

FILE NUMBER(S):

10494 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Consent :- Residential subdivision for 20 allotments - landscaping - stormwater drainage

DATES OF HEARING:

01/12/2005 and 12/12/2005

EX TEMPORE JUDGMENT DATE:

12/12/2005

LEGAL REPRESENTATIVES:

APPLICANT

Mr G McKee, solicitor
SOLICITORS
MCKEES

RESPONDENT
Mr P Rees, solicitor
SOLICITORS
PETER REES

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

12 December 2005

10494 of 2005 R L Wilson & C S Wilson v
Great Lakes Council
JUDGMENT

1 This matter involves an appeal against conditions of consent imposed on a residential subdivision for 20 allotments, plus a reserve lot at Lot 52, DP 1036056, Margina Close, Tuncurry. In particular, the applicant has sought the deletion of the following conditions:

20. A mechanism for the long-term management of all street trees and landscaping shall be devised. These shall include the replacement of lost or dying stock as well as weed control activities …

25. All engineering works being provided to serve all lots with the works complying with Council’s Engineering Specifications, Standards, Codes and Policies.

All work is to be at the developer’s expense. No engineering works are to commence on the development until a subdivision construction certificate has been issued. Detailed design plans are to be submitted with the application for a construction certificate, and approved by the Director of Engineering prior to a construction certificate being issued. The work is to be completed in accordance with the registered plans prior to the issue of subdivision certificate. Included in the engineering works is to be the following:

(a) The provision of kerb and gutter, ancillary drainage, relocation of services, footpath levelling and turfing, and construction with full width seal for the full frontage of the proposed and existing subdivision.
(b) Formation of the footpath area, construction of a 1.2 m wide concrete footpaving and topdress and grass the remainder of the frontage of the subdivision in the Lakes Way Street between the proposed Lot 6 and Lot 8.

2 As a result of further negotiations by the parties, they agreed to consent orders, including variation to the original conditions of consent. However after consideration of these agreed conditions of consent, the Court required further clarification of the landscaping requirements, details of the requirements for dealing with the identified contamination of the site and clarification of the stormwater drainage discharge arrangements.

3 Consequently the matter was adjourned so that the parties could provide the additional details in order to satisfy the Court that the consent orders should be granted. During the adjournment period, the aforementioned matters were addressed.

4 Revised conditions concerning the landscaping works were presented. They now require landscaping to be undertaken in accordance with concept plans accepted by council and to be implemented under the supervision of a qualified landscape consultant. This consultant is then required to submit to council a Certificate of Practical Completion stating that the work has been carried out in accordance with the approved landscape plan and that a maintenance program has been established. The conditions also restrict further removal of Banksia from the residue lot for the purposes of establishing asset protection zones.

5 I am now satisfied that these revised landscaping conditions reasonably address the uncertainties presented in the original conditions of consent.

6 With regard to the contamination issues, further site investigation was undertaken revealing a small area of soil contaminated with petroleum hydrocarbons with concentrations marginally over the EPA Guidelines in one location on the site. The environmental consultants, Whitehead & Associates stated that given the small quantity of soil (anticipated to be less than 1 cu. m), low concentration and mobility of the contaminant, the risk to the environment and human health was considered to be low.

7 Consequently, the revised and agreed conditions of consent now provide for a Deferred Commencement Condition, which requires the applicant to produce to the council satisfactory evidence verifying that the land has been remediated in respect of petroleum hydrocarbons to below the threshold as specified in the EPA Guidelines for Assessing Service Station Sites.

8 Having considered the additional expert evidence on this issue, I am satisfied that the revised conditions are satisfactory in the circumstances of this case.

9 The other outstanding issue concerned the method of stormwater discharge from the site because the original conditions identified some uncertainties in the downstream systems capacity to receive any additional runoff from the new subdivision. However council has now advised the Court that:

Council has investigated the existing system relating to the Banksia gardens Estate Stage 1, that will receive stormwater discharge from the subject development and is satisfied that the system is capable of safely accepting and satisfactorily accommodating stormwater flows and velocities from the subdivision in this matter, when fully developed for residential purposes.

10 I rely on this advice to address the uncertainties in the conditions as originally presented relating to stormwater discharges.

11 Having considered council assessment officer’s report on the original development application, which apparently addresses the relevant matters for consideration, I am satisfied to rely on this, together with the revised conditions of consent to now grant the following consent orders.

Orders

12 By consent the Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 483/2004 for the subdivision of Lot 52 DP 837402, Margina Close, Tuncurry, into 20 residential lots, 2 public reserve lots and a residue lot, subject to the conditions in Annexure ‘A’ to these orders.

3. Each party to pay its own costs.

4. The exhibits be retained on file.

R Hussey
Commissioner of the Court
rjs