Land and Environment Court of New South Wales CITATION : Navaroo Construction Pty Ltd v Palerang Council [2006] NSWLEC 404 APPLICANT Navaroo Construction Pty Ltd PARTIES : RESPONDENT Palerang Council FILE NUMBER(S) : 10646-50 of 2005, 10653 of 2005, 10658-10661 of 2005, 10663 of 2005, 10668 of 2005 CORAM: Hussey C KEY ISSUES: Development Consent :- Residential subdivision - Orders LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 28/06/2006 DATE OF JUDGMENT: 07/06/2006 APPLICANT Mr C Leggatt, SC SOLICITORS Harris & Company LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Minter Ellison JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 6 July 2006 10646-50 of 2005 10653 of 2005 10658-61 of 2005 10663 of 2005 10668 of 2005 Navaroo Constructions Pty Ltd v Palerang Council JUDGMENT 1 The proceedings involved 16 appeals, which were heard concurrently against s 96 Modifications to conditions of consent for a 44-47 lot residential subdivision at Bungendore. For the appeal a number of issues were identified generally dealing with the following infrastructure requirements: o provision of adequate roof catchment area, o provision of adequate on-site waste-water disposal area, o contingency connection of STP to town sewerage system, o provision of a path/cycleway, o limitations on direct access from the new lots onto Hoskinstown Road. 2 My findings on these issues were made on 13 April 2006. The parties were allowed to review the appeal conditions on the basis of these findings. 3 Consequently the applicant has decided to discontinue the appeals against the conditions of consent on dealing with water supply, fire fighting and a minimum roof area catchment capacity of 250 sq m. 4 With respect then to the other appealed matters, the parties have agreed to the following arrangements: o the plan of subdivision be adjusted to provide alternative battleaxe handles for all those lots fronting Hoskinstown Road, to which direct access is denied, o the location of the reclaimed water irrigation fields to be in accordance with setback specifications and covered by 88B restriction. o the appeal against Condition 27 dealing with contingency arrangements for the water cycle management system be dismissed, thereby maintaining council's initial requirements. o the developer to make a contribution towards the future construction of a path/cycleway on an agreed conditional basis, o the internal road works appeal is dismissed. Conclusions 5 Having considered the subsequent submissions, it is apparent that the applicant's decision to discontinue a number of the s 96 Modifications appeals, results in the original conditions of consent being maintained. Whilst there appears to be some internal consistencies with the conditions (e.g. minimum roof catchment area and minimum reclaimed irrigation field areas) which are to be installed prior to release of the linen plan (Condition 23.14) and their numeric requirements varies from that determined during the appeal, nevertheless resolution of these matters is outside the Court's responsibility in this case. 6 With regard to the other appeal matters, the Court accepts the agreed position of the parties and makes the following orders. Court orders 7 The orders of the Court therefore are: Appeal No. 10646 of 2005 1. The appeal against council's refusal of the applicant's application to modify Condition 17 is upheld only so as to permit modifications to Conditions 1 and 17, in accordance with Annexure 'A', which are consequential upon the finding at paragraph [102 a)] of the Court's decision dated 13 April 2006. 2. The appeal is otherwise dismissed. Appeal No. 10647 of 2005 1. The appeal be dismissed. 2. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. Appeal No. 10648 of 2005 1. The appeal is upheld. 2. Condition 8 be amended in accordance with Annexure 'B'. 3. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. Appeal No. 10649 of 2005 1. The appeal against Council's refusal of the applicant's application to modify Conditions 9 and 51 is upheld only so as to permit modifications to Conditions 2, 9 and 14, in accordance with Annexure 'B', which are consequential upon the finding at paragraph [102 a)] of the Court's decision dated 13 April 2006. 2. The appeal against Council's refusal of the applicant's application to modify Conditions 9 and 51 is otherwise dismissed. 3. By consent, the appeal against Council's refusal of the applicant's application to modify Condition 12 is upheld. 4. Condition 12 be modified in accordance with Annexure 'B'. Appeal No. 10650 of 2005 1. Condition 24 be amended in accordance with Annexure 'B'. 2. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. Appeal No. 10653 of 2005 1. Conditions 16 and 20 be amended in accordance with Annexure 'B'. 2. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. Appeal No. 10658 of 2005 1. The appeal is dismissed. 2. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. Appeal No. 10659 of 2005 1. The appeal is upheld. 2. Condition 8 be modified in accordance with Annexure 'C'. Appeal No. 10660 of 2005 1. The appeal against Council's refusal of the applicant's application to modify Conditions 9 and 51 is upheld only so as to permit modifications to Conditions 2, 9 and 14, in accordance with Annexure 'C', which are consequential upon the finding at paragraph [102 a)] of the Court's decision dated 13 April 2006. 2. The appeal against Council's refusal of the applicant's application to modify Conditions 9 and 51 is otherwise dismissed. 3. By consent, the appeal against Council's refusal of the applicant's application to modify Condition 12 is upheld. 4. Condition 12 be modified in accordance with Annexure 'C'. Appeal No. 10661 of 2005 1. Condition 24 be amended in accordance with Annexure 'C'. 2. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. Appeal No. 10663 of 2005 1. The appeal is dismissed. 2. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. Appeal No. 10668 of 2005 1. Conditions 16 and 20 be amended in accordance with Annexure "C". 2. The exhibits be returned except for Exhibits 16, 17, 19, 20, 25, 26, 30, A and P. ___________________ R Hussey Commissioner of the Court rjs/ljr 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.