Land and Environment Court of New South Wales CITATION : Townsend v Evans Shire Council [2004] NSWLEC 146 APPLICANTS PARTIES : Colin Townsend and Mary-Rose Townsend RESPONDENT Evans Shire Council FILE NUMBER(S) : 10445 of 2003 CORAM: Nott C KEY ISSUES: Subdivision :- Rural property - six lots of 5 ha or less and a residue lot of 163 ha - economic viability of small lots - setbacks from boundary - impacts on agricultrual potential LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: DATES OF HEARING: 27-29 October 2003, 5 January 2004 EX TEMPORE 01/05/2004 JUDGMENT DATE : APPLICANTS Mr D Olney, solicitor SOLICITORS Booth Brown Samuels & Olney LEGAL REPRESENTATIVES: RESPONDENT Mr P Crennan, solicitor SOLICITORS McIntosh, McPhillamy & Co JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10445 of 2003 Nott C 5 January 2004 Colin Townsend & Mary-Rose Townsend Applicants v Evans Shire Council Respondent Judgment 1 . This is an appeal against the council's deemed refusal of a development application to subdivide two adjoining parcels of land being part of lot 75 DP192661 and having an area of 101.2 ha and lot 3 DP790716 having an area of 96.56 ha excluding the area of a road. These two parcels, which I will call the subject land, are shown in the plan of the existing boundaries being part of the documents lodged with the class 1 appeal exhibit B. I reproduce below the relevant parts of this plan of the existing boundaries of the subject land. 2 . The original application was to create 11 lots including a residue lot. The layout can be seen in the original plan dated 15 March 2002 part exhibit 4. After the lodgement of the appeal the applicants applied to amend the development application by substituting a new plan containing 8 lots which is also part of exhibit 4 but Cowdroy J refused to grant leave to amend the application. Following his Honour's decision the applicants again applied for a different amended subdivision layout containing 7 lots including a residue lot. This time the council consented to the amendment prior to the hearing before me. 3 . The amended plan, which the council agrees is now the subject of the appeal and in respect of which the applicants seek development consent, is the plan exhibit A. I reproduce a copy of this exhibit with a minor amendment making it clear where one of the western boundaries is approximately located having regard to the other plan which is reproduced in this judgment: 4 . The proposed lots 1 to 6 have areas ranging from 2 ha to 5 ha as stated in a table on exhibit A. The proposed residue lot, lot 7, has an area of 163.2 ha. The complete boundaries of proposed lot 7 are not shown on exhibit A but it was agreed that a condition of consent could adequately identify the whole of this residue lot. 5 . At the hearing, evidence for the council included the expert evidence of Mr B Jones, Director Environmental Services of the council. For the applicants, quite a number of experts were engaged dealing with many aspects of the proposal, and some of the aspects are no longer in issue. 6 . Mr W Garnsey, a consultant town planner, gave evidence in support of the proposed subdivision. He dealt with the various provisions of the relevant planning instruments in relation to the social and economic impacts of the proposal. He noted among other things that the subject land is located only 5 km southwest of the regional city of Bathurst. He was of the opinion that the proposed subdivision would provide positive economic impacts as the proposed lots would provide good amenity and setting for rural residential development located near a large regional city. 7 . Mr R Ivey, an agricultural management consultant, gave evidence concurring with the designation of the proposed small lots as being land of capability classes VI and VII. He assessed the expected value of agricultural output from the proposed small lots, if they were not subdivided, as being approximately $5000 or about $265 per ha. 8 . Mr M Dalzell, a structural engineer, gave evidence concerning the suitability of the bridge over Evans Plains Creek to carry the expected additional traffic that the proposed development would generate. 9 . Mr J Armitage, consulting engineer, gave evidence as to the appropriate disposal of stormwater from the subdivision and the roads and there was no issue raised by the council following the tendering of his statement. 10 . Dr D Windsor provided a specification for the establishment of a buffer of trees surrounding the proposed smaller lots immediately adjoining their common boundaries with the large residue lot, lot 7. 11 . Mr R Cox, an engineering geologist, carried out investigations and provided evidence to the Court and to the council that shows that on each of the proposed small lots a house could be established which would be able to satisfactorily dispose of effluent on its own site. 12 . The applicant, Mr Townsend, gave evidence to the effect that the subject land is part of a property known as Willowvale now having a remaining area including the subject land of about 380 ha. He was of the opinion that the loss of the proposed small lots, lots 1 to 6, would not affect the viability of his agricultural undertakings on the balance of the subject land, namely residue lot 7 and the larger remaining part of Willowvale. He further gave evidence that in respect of proposed residue lot 7 near the creek the land is degraded and is affected by silt or salinity and is sandy and would not support vegetation. However, on my view I did note that there was some vegetation growing but the land did appear as he indicated to be somewhat degraded. 13 . In the light of that evidence, which I have briefly referred to, it is not necessary to consider in detail all the issues set out in the amended statement of issues dated 22 October 2003. The main issues perhaps could be noted as being: (1) the economic impact of the proposed development on agricultural enterprises, (2) conflict between competing land uses, and (3) whether there would be an inappropriate concentration of small lots in the locality if the proposed development were approved. 14 . The issues may be considered having regard to the more relevant provisions of the applicable Interim Development Order No 1 – Shire of Evans , and having regard to the provisions of the council's Development Control Plan for Rural Subdivision and Erection of Dwellings . I set out below cll 3(2), 3(4), 15(4), 15(10) and Sch 7 of the IDO. 3(2) The objectives of Zones Nos. 1 (a) and 1 (b) are: (a) to preserve land with a Land Capability of Class I, II, III, IV or V; (b) to protect the economic viability of rural and agricultural enterprises; (c) to ensure that subdivisions are compatible in size with the surrounding holdings; (d) to ensure that the social, environmental and economic impacts of a development proposal are considered; (e) to ensure that subdivision design is compatible with the existing topography and landscape; (f) to ensure that contaminated land is not developed unless adequate remediation work has been undertaken; (g) to ensure that legal physical access is available to land; (h) to ensure that significant flora and fauna habitats are protected; (i) to ensure that the rural and natural landscape quality of land within the area of Evans is protected or enhanced; (j) to ensure that each site has the capacity to dispose of effluent with minimal environmental effects; (k) to ensure that land is developed in a manner which is compatible with the physical constraints of the site; (I) to protect significant extractive and mineral deposits from incompatible development; and (m) to protect and enhance significant archaeological and heritage areas. … 3(4) The Council must have regard to the objectives of the zone before granting consent for development within Zone No.1 (a), 1 (b) or 2. … SUBDIVISION OF LAND GENERALLY 15(4) The council may grant consent to a subdivision of land to which this clause applies only after it has considered the criteria 1isted in Schedule 7 and only if each allotment created by the subdivision has: (a) an area of not less than 1 or more than 20 hectares; if (i) the allotment consists of land that is not of Land Capability Class I, II, III, IV or V; … Lot yields: 15(10) The council must not consent to the creation of more than 35 lots per calendar year pursuant to clause 15 (4)(a), or such other number as may be agreed between the Director and council, subject to review every six months. … SCHEDULE 7 (CL.15 & 16) 1 The agricultural potential of the property and the best use of the land to be subdivided will be considered by the council. 2 The proposal should be compatible with the adjoining and surrounding, lot sizes, land uses and topography. The council should consider a map indicating the size of the adjoining lots and use of all adjoining land and nearby properties and locations of dwellings within 2 kilometres of the land. New rural residential development should not jeopardise the economic viability of nearby rural and agricultural enterprises. Any proposal should state the methods to be used to reduce possible negative impacts on adjoining land uses e.g. control of cats and dogs, outdoor lighting, noise. The council's adopted buffer zones are to be utilised by the proposal, in accordance with the council's Development Control Plan—Rural Residential Subdivision. 3 The site is not to be contaminated land, (as identified in Council's Contaminated Lands Register), unless remediation work is to be undertaken to clean-up the site prior to its development. 4 The proposal must have, or provide for, legal and physical access. The council must have considered whether the proposal affects: (a) critical habitat; or (b) threatened species, populations and ecological communities, as defined by the Threatened Species Conservation Act 1995; or (c) protected fauna or flora, under the National Parks and Wildlife Act 1974; or (d) significant areas of remnant native vegetation, National Parks, Nature Reserves, Wilderness Areas, State Recreation areas or the like. The council must be satisfied that appropriate measures are to be used to reduce that impact, e.g. no development in those areas, or management of those sites with regards to fires, cats, access, etc. 6 The extent of clearing to be undertaken by the development must be considered by the council. 7 The proposal should not significantly affect the rural or natural landscape quality of the locality. Areas of high visual impact are to be avoided to ensure that the scenic quality of the area is maintained. The council must consider how any adverse visual impact will be reduced. 8 Environmentally sensitive land should not be developed unless the proposal has minimal adverse effects on the area's environmental quality. 9 Each proposed dwelling site must be capable of adequate effluent disposal. A soil test and associated water balance analysis as well as additional site evaluation procedures determined by the Director of Environmental and Planning Services must have been carried out. 10 The following physical constraints of the land must have been considered by the council, but its consideration need not be limited to them: (a) The slope of the land slopes of greater than 30 degrees and shall not be developed for dwelling sites; [sic.] (b) The land to be developed for dwelling sites should not be in floodways and, if on flood liable lands, development must be within the provisions of the council's Floodplain Management Policy; (c) The location of areas of high water table, wetlands and dry land salinity. These areas are to be avoided, as should water supply catchment areas and ground water recharge areas. The level of the water table should be determined; (d) No effluent disposal sites are to be located within 100 metres of rivers and creeks, and 40 metres of other watercourses; (e) Areas of significant erosion are to be avoided and rehabilitated as part of the proposal. The sites of erosion are to be identified and details of an erosion control program is to be approved by both the Department of Land and Water Conservation, Soil Conservation Section, and the council; (f) Unstable soils and karst areas are to be avoided. The council must have considered a written assessment of such sites from a qualified person satisfactory to the council; (g) The possibility of bush fire must have been assessed and the development designed accordingly, as per the document "Planning for Bush Fire Protection" published by the Rural Fire Service. 11 Extractive and mineral resource sites are to be avoided and the appropriate buffer zones established as per the council's Development Control Plan—Rural Residential Subdivision. 12 Areas of archaeological and heritage significance are to be developed in sympathy with those sites. The council must have considered details outlining how those areas (if any) are to be preserved or enhanced by the proposal. 13 The council must have considered the likely social and economic impact of the proposal. 15 . I also set out below cll 3.2 and 3.3 of the DCP. 3.2 Additional matters In addition to the provisions of Schedule 7, other considerations may include; (1) Availability and adequacy of telecommunication and electrical utilities for the development; (2) Provision of building envelopes which incorporate appropriate butter zones, slope and setbacks as noted in section 3.3 of this DCP; (3) Council's Fencing and Setbacks Policy; (4) Council's Engineering Policy which provides specifications for the provision of physical access to each allotment; (5) The impact of the development on land resources in the vicinity. The applicant must consider: (a) Prime agricultural land potential; (b) Presence of mineral and extractive resources; (c Water supply catchment where appropriate; (d) Proximity to village area; (6) Provision of a potable water supply; (7) The current status of the land in regard to weed infestations, feral animals, vermin and disease; (8) Waste disposal options for the development; (9) Potential impact of air pollution from dust and sprays from adjoining lands, and from potential generation of air pollution from within the development, and possible means of mitigation; (11) The cumulative impact of the development on the locality, (12) Impact of the development on current or future community title schemes; (12) Compliance with relevant environmental planning instruments. Where departure is considered, an appropriate submission indicating reasons for the departure; (13) Justification of demand, for the type of development including staging program if applicable; Additional considerations are not limited to those indicated above. Council may require analysis of further factors as a result of localised environmental characteristics. 3.3 Buffer Zones The buffer zones in Rural Zones 1 (a) and 1 (b) aim to facilitate the compatibility of the proposed development with surrounding land uses and allotment sizes. 3.3.1 External Boundary Setbacks The distance of any dwelling from an external property boundary of the subdivision is to be a minimum of 150m where the external property is/has; (a) an area of 100 hectares or greater; or (b) a landuse that may be impacted upon by the 1 development; or (c) a landuse that may impact upon the proposed development. 3.3.2 Internal Boundaries The distance of the building envelopes from internal side and rear , subdivision boundaries is to be a minimum of 50m . 3.3.3 Variations Boundary setbacks 3.3.1 and 3.3.2 of this DCP may be varied at the discretion of Council. Where setbacks are to be varied, Council will consider; * opographical features, * substantial vegetation planting, * adjoining allotment sizes, * buffer requirement, * reasonable use of the allotment, * adjoining land uses. 16 . The proposed subdivision is permissible having regard to cl 15(4) because the proposed small lots, each of which is greater than 1 ha and less than 20 ha in area, fall within land capability classes VI and VII. Technically speaking the proposed residue lot would appear to be class II land. This residue lot in part adjoins the creek but it also sweeps around and encompasses the proposed small lots and incorporates part lot 75. 17 . As Mr Townsend said part of proposed lot 7 which would appear to have the greatest agricultural potential would appear to be somewhat degraded. That part of proposed lot 7 which is immediately to the north of the proposed small lots providing a corridor between those lots and an adjoining property in other ownership would, from my inspection, appear to be somewhat similar in character to the land in the proposed small lots. That corridor of land to the north of the small lots is also sloping and does not have the same potential as land might have closer to the creek. 18 . It is important to note that the council and this Court when considering the application on appeal must have regard to the objectives of the zone before granting consent. Those objectives are set out in cl 3(2) of the IDO. When one has regard to those objectives it is also necessary to take into consideration, as required by cl 15(4), the thirteen items in Sch 7 of the IDO. 19 . Many of the items in Sch 7 would appear to overlap with the objectives in the IDO as they apply to the subject land. For example, objective (a) and item 1 of Sch 7 may be considered together. These provisions relate to the capability of the land and the agricultural potential of the property. Again, for example, objectives (b) and (c) of the IDO raise matters similar to those raised by item 2 of Sch 7. 20 . In considering the agricultural potential of the land and the preservation of land that is of class II, I have already referred to some of the evidence by the applicants' witnesses. 21 . As mentioned by Mr Crennan, solicitor for the council, in his submissions the proposed small lots rely on a buffer of vegetation which is to be provided on residue lot 7 immediately adjoining the common boundaries of that lot with the small lots 1, 2, 3, 4 and 6. This buffer of vegetation will be 25 m wide and it is proposed to fence the trees that will be planted in order to prevent stock from destroying the vegetation. 22 . I take into account that there will be some diminution in the useable land for agricultural purposes outside the small lots by reason of the buffer being provided but I do not consider in the circumstances that this is a sufficient reason for refusal of the application. Among other things, I take into account that the whole of the applicants' property Willowvale would not appear to be land that would provide a large income. At least I take into account that the subject land itself, namely the two parcels of land I referred to at the beginning of this judgment, would not appear on the evidence to have a very high agricultural potential (notwithstanding the apparent classification under the Land Capability Map referred to in the IDO). 23 . Such potential that the subject land does have in respect of residue lot 7 in my opinion will not be significantly affected by the proposed subdivision. The area of residue lot 7 adjoining the creek to the north of an existing road running generally east-west is connected by a corridor as I mentioned to the balance of lot 7 to the west of the small proposed lots and there is little usage of the road dividing existing lot 3 from the other parcel, part lot 75, so that land both to the north of the east-west road and to the south could be operated in conjunction in some agricultural enterprise. 24 . The buffer of trees that is intended to be provided in my opinion will provide a sufficient buffer between any future house on the proposed small lots and the remaining residue lot 7, taking into account the quality of lot 7. 25 . As regards the property that adjoins Evans Plains Creek immediately to the northeast of the subject land, that property would appear to have a greater agricultural potential than the subject land. On my inspection, lucerne was growing on that property in the paddock adjoining the creek. Taking into account whether there will be possible conflicts between the proposed small lots (insofar as they may in the future have houses erected on them) and the land immediately to the north-east which is in different ownership, I note that the distance from the closest possible or likely building site on proposed lot 3 to the corner of the lucerne paddock to the north is about 200 m. There is also a substantial setback of the likely building site from the other paddock on sloping land adjoining the subject land to the north. A greater setback would be provided for any house on the most likely building site on proposed lot 4. 26 . On the western side of the proposed small lots is part of the residue lot 7 about which I have already made comments and I note additionally that the proposed small lots are on the eastern side of a crest which more or less runs along the western boundary of the proposed small lots, so that from a topographical point of view there would be some separation of houses on the proposed lots from agricultural activity further to the west on proposed lot 7. 27 . The proposed small lots in my opinion would not affect the economic viability of adjoining agricultural enterprises on land outside the ownership of the applicants. The proposed small lots are compatible in size with two concessional lots that the proposed small lots adjoin. It seems to me to be appropriate that the proposed small lots are located in the vicinity of the two concessional lots so that on the western side of the proposed small lots there will be the buffer of trees which will provide a buffer not only to proposed lots 4 and 6 but also to the two concessional lots. On the eastern side of those concessional lots, on the flat between them and the creek, the situation will not change from what occurs at present. 28 . This proposed amended subdivision application for 7 lots is different from an earlier version of the application where there was a proposed small lot adjoining the creek. That small lot has been deleted and no issue arises as regards flooding. Taking into account the evidence of the town planners I do not consider that there are social environmental or economic impacts of a kind that would lead to a refusal of the application. The subject land is flat near the river and rises to sloping land where the proposed small lots are to be located. 29 . The evidence in relation to effluent disposal takes into account the nature of the land. 30 . There was no issue raised by the council concerning the visual impact of the proposed development or of possible future houses that might be erected on the small lots. In any event, with the establishment of the 25 m wide buffer of trees around these small lots together with the lots being twice to five times the minimum size permitted under the IDO suggests that adequate screening will be able to be provided for future houses on the small lots. The proposed subdivision in my opinion is acceptable having regard to the other objectives of the 1(a) zone set out in cl 3(2) of the IDO. The subdivision has to also be considered having regard to the additional matters in cl 3.2 of the DCP. In this case, these matters overlap with matters in respect of which I have already made findings or relate to aspects of the development that were not in issue. 31 . Having considered the additional matters in cl 3.2 of the DCP it seems to me that it would be appropriate to grant development consent subject to conditions. Clause 3.3 of the DCP is also relevant. That clause on its face distinguishes between the external boundary of the subdivision and internal boundaries. 32 . I have already referred to the large setback of any likely future house on the proposed small lots near the north, namely lots 3 and 4. The proposed small lots in relation to the residue lot 7 would appear to be able to provide building envelopes with an adequate setback to the common boundaries with residue lot 7. In addition, there is the buffer to be provided immediately outside the small lots on the residue lot 7 itself. 33 . As well, I note that if there was not compliance with cll 3.3.1 and 3.3.2 there is power to vary the boundary setbacks having regard to the matters set out in cl 3.3.3, including whether there is substantial planting of vegetation, the reasonable use of the lot and adjoining land uses. In the circumstances, having regard to the DCP, I am of the opinion that it is appropriate to grant consent subject to conditions. The conditions will be those set out in annexure A which is to comprise the conditions in exhibit 17 amended in the way discussed and agreed during the course of the hearing. 34 . Accordingly, the orders of the Court are: 1. The appeal be allowed. 2. Development consent is granted for the subdivision into six lots being lots 1 to 6 plus a residue lot, lot 7 of the land in existing lot 3 DP790716 and part lot 75 DP192661 subject to the conditions in annexure A hereto. 3. The exhibits, other than exhibits A, B, O, P and 17, may be returned. A J Nott Commissioner of the Court mp Annexure A Conditions DA122/2002 1. The layout and the areas of the proposed lots 1 to 6 are to be in accordance with the plan exhibit A. The proposed lot 7 is the residue of the subject land, being lot 3 DP 790716 and pt lot 75 DP 192661 (shown on a plan of existing boundaries, exhibit B) after the excision from the subject land of the proposed lots 1 to 6 and proposed road. The boundaries of proposed lot 7 (not fully shown on exhibit A) that are south of the generally east-west existing road are to coincide with the boundaries of the said pt lot 75. 2. The notes on the exhibit A (relating to dimensions and areas being subject to survey) do not apply to this consent. Any amendment to the subdivision layout or to the areas of the lots stated on exhibits A is only to occur with the consent of the council (or of this Court) upon application being made under section 96 of the Environmental Planning and Assessment Act 1979 . 3. Submission to the council of a registrable plan of subdivision and six copies by a registered surveyor in accordance with the conditions of this consent, prior to the issue of the subdivision a certificate. 4. Evans Shire Council is to be provided with a report, prior to release of the Subdivision Certificate, from the Upper Macquarie County Council indicating: (a) Noxious Plants are under adequate management/; or (b) Noxious Plants Management has been undertaken and adequate control measures are in place. 5. Evans Shire Council is to be provided with prior to release of the Subdivision Certificate, certification indicating that electrical and telecommunications utilities services may be made available to each allotment. 6. Evans Shire Council's Engineering Department is to be contacted to allow the appropriate rural address numbers to be allocated to the subdivision. The numbers are to be displayed on each allotment prior to the issue of the Subdivision Certificate. 7. All weather entrance into each allotment from the road is to be provided in accordance with Evans Shire Council's Engineering Policy, as at the date of this consent, prior to the issue of the Subdivision Certificate. As an alternative to construction, prior to the issue of the Subdivision Certificate an appropriate security deposit to cover the cost of works may by lodged. 8 Should any new dams be proposed on the land the developer is to be guided by the Department of Land and Water Conservation Farm Dams Assessment Guide. 9. Roads are to be constructed to the west of the bridge over Evans Plains Creek to a point 20 metres beyond the entrance to lot 6 (with a turning circle to be constructed at that point with a minimum radius of 15 metres) and to the boundary of lots 3 and 4 as indicated on exhibit A. The roads are to be constructed, sealed including appropriate road signage and furniture to Evans Shire Council's Engineering Policy Roads & Subdivision for rural roads as follows: · A minimum reserve width of 20 metres. · A distance of batter to the boundary of 5 metres. · A formation width of 8 metres. · A seal width of 7 metres. · A minimum gravel depth (subject to testing) of 150 millimetres. · Grades between 0.5% and 10%. · A design speed of 80 kilometres per hour. This work is to be carried out the satisfaction of Evans Shire Council's Director of Engineering prior to the issue of the subdivision certificate. 10. The design and construction of all engineering works is to be performed by or under a person eligible for membership to the Institution of Engineers Australia. The road is to be designed and constructed to meet with the Roads and Traffic Authority design guide. 12. Evans Shire Council will require specifications of road and associated drainage works to the satisfaction of Evans Shire Council's Director of Engineering which may include the following prior to the commencement of any works: · An engineering plan showing road design, water catchment and flows. · Long sections of the road design every 50 metres · Cross sections of the road for drainage · Culvert design and drainage. Note all culverts are to be a minimum of 450 millimetres diameter and must have a ;headwall at either end · An environmental management plan, i.e. sediment control plan · Earthworks design · Pavement design, materials being used in construction of the road to be tested before use and the results of CBR to be given to Evans Shire Council's Director of Engineering to check for suitability. Evans Shire Council will require the following detail to be provided to the satisfaction of Evans Shire Council's Director of Engineering after the commencement of earthworks · Compaction tests of the sub-grade and base levels. Tests will also need to be done over all filled areas and any unfilled areas done in a random pattern to best reflect the overall compaction. These results need to be given to Council before sealing. 13. A "Work as Executed" survey will be required on completion, on all new earthworks to show that works were performed as per the designs is to be supplied to the satisfaction of Evans Shire Council's Director of Engineering. 14. The stock grate located near the bridge is to be removed during road construction. 15. The bridge is to be examined by a Structural Engineer to determine conformity with the Austroads Australian Bridge Design Code and any structural inadequacies addressed to the satisfaction of Evans Shire Council's Director of Engineering, prior to the issue of the Subdivision Certificate. 16. The bridge is to have guard fencing installed in lieu of the existing guide posts, prior to the issue of the Subdivision Certificate to the satisfaction of Evans Shire Council's Director of Engineering. 17. The signage to the approaches of the bridge are to be installed in accordance to Australian Standard 1742.2 Section 3.6.2.2 One Lane Bridges on two-way carriageways, prior to the issue of the Subdivision Certificate. 18. Guard fencing be installed at the approaches of the bridge in accordance with Section 3.6.2.5 and Appendix F of AS 1742.2. prior to the issue of the Subdivision Certificate. 19. The developer shall construct and seal Stewart Street from its intersection with the western point of Sale Street to the bridge over Evans Plains Creek to the satisfaction of Bathurst City Council's City Engineer. Evans Shire Council shall be provided with documentation indicating compliance with this condition prior to issue of the Subdivision Certificate: · St ewart Street as referred to above is to be designed and constructed as a Rural Residential roadway in accordance with Bathurst City Council's Guidelines for Engineering Works and Civil Engineering Construction Specification. · The applicant is to submit three (3) copies of engineering plans, specifications and calculations in relation to the road and bridge upgrade. Further, the works are to comply with Bathurst City Bathurst City Council's Guidelines for Engineering Works and Civil Engineering Construction Specification. · All road and inter allotment drainage is to be conveyed to the Evans Plains Creek in accordance with Bathurst City Council's Guidelines for Engineering Works and Civil Engineering Construction Specification. · The applicant is to arrange an inspection of the subdivision works by Bathurst City Council's Engineering Department at the following stages of the development. This condition applies notwithstanding any private certification of the engineering works. Column 1 --------------------- *Column 2 Road Construction *Following site regarding, and prior to installation of footway services; *Excavation and trimming of sub-grade; *After compaction of sub-base; *After compaction of base, and prior to sealing; *Establishment of line and level for kerb and gutter placement; *Subsoil drainage; * Road pavement surfacing; * Pavement test results (compaction, strength) Drainage *After laying of pipes and prior to backfill; *Pits after rendering openings and installation of step irons Erosion & Sediment Control *Prior to the installation of erosion measures All Development and/or Subdivision Works*Practical completion · The development is to lodge a bond with Bathurst City Council equal to 5% of the total road upgrade civil construction costs at practical completion to be held by Bathurst City Council for a minimum period of twelve (12) months. The bond must be lodged with Bathurst City Council before a subdivision certificate will be issued by Evans Shire Council. · The payment of $7.10 per lineal metre for the approval of Engineering plans and inspection of the road during construction. This monetary contribution is to be paid to Bathurst City Council prior to the issuing of any Construction Certificate. · The developer is to submit a soil and water management plan for roadworks in accordance with Bathurst City Council's Guidelines for Engineering Work and Civil Engineering Construction Specification. No building, engineering, or excavation work, or topsoil stripping or vegetation removal, is to be carried out in relation to this development until such time as a compliance certificate pursuant to Section 108C of the Environmental Planning and Assessment Act 1979, as amended has been issued by Bathurst City Council or an accredited certifying authority certifying that the plan is in accordance with Bathurst City Council's Guidelines for Engineering Works. Upon certification, the measures in the Soil and Water Management Plan are to be implemented during the course of the development. · The developer is to relocate, if necessary, at the developer's cost any utility services. 20. Payment of outstanding fees of $1437.00 to Evans Shire Council based on a seven lot subdivision, prior to the issue of the Subdivision Certificate. Note : Development Application fees to the application include: Development Application fee $ 850.00 Fee per allotment ($50 per 6 allotments) $ 300.00 File maintenance fee (per application) $ 75.00 Access Inspections ($166.00 per 6 allotments) $ 996.00 Total fees applicable $2 221.00 Fees paid by applicant $ 650.00 Net fees payable $1 571.00 22. Each lot created shall retain and dispose of on site all effluent produced. The effluent disposal system shall:- (a) comply with Australian Standard AS 1547-2000 Disposal Systems for Effluent from Domestic Premises and the combined New South Wales Government Departments Environmental Health Protection Guidelines (EHPG) On Site Sewage Management for Single Households (1998). (b) be located generally in accordance with the report for the relevant lot prepared by Robert Cox (exhibit O). to the satisfaction of the Director of Environmental Services Evans Shire Council. 23. The access road from the bridge to the entrance to the proposed Lot 6 from the south western corner of Lot 1 DP620809 is to be dedicated as a Public Road and indicated as such on the survey plan. 24. The proposed new road accessing Lots 2, 3, 4 and 5 is to be dedicated as public road and indicated as such on the survey plan. 25. All road boundaries and allotments are to be fenced with a suitable stock restraining fence prior to release of the Subdivision Certificate. 26. The applicants are to establish vegetation buffers of trees and shrubs on proposed lot 7 immediately adjoining the common boundaries of proposed lots 1 to 6 with lot 7. The vegetation buffers are to be 25 m wide with trees and shrubs planted 5 m apart generally in accordance with the recommendations and guidelines provided by Dr D. M. Windsor in her report dated 17/11/03 (exhibit P), and erect total perimeter stock proof fencing around such vegetation buffers to the satisfaction of the Director of Environmental Services Evans Shire Council prior to the issue of a Subdivision Certificate. Further, the applicants are to create a public positive covenant pursuant to section 88E of the Conveyancing Act 1919 at the time the plan is registered whereby the owner of the residue lot will covenant to:- (i) maintain the total perimeter stock proof fencing around vegetation buffers (ii) inspect, manage and maintain and where and when necessary replant, the trees and shrubs comprising the vegetation buffer. 27. The applicants are to provide a storm water drainage system for the proposed subdivision generally in accordance with the report of Calare Civil Pty. Limited dated 26/11/03 filed in these proceedings, and to the satisfaction of the Director of Engineering, Evans Shire Council. The applicants are to create an easement to drain water pursuant to Section 88A of the Conveyancing Act 1919 at the time the plan is registered for the benefit of Evans Shire Council and burdening proposed Lot 2 in accordance with the report, to the satisfaction of the Director of Engineering, Evans Shire Council. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.