Land and Environment Court of New South Wales CITATION : Calvert de Witt & Taylor v Dungog Council [2004] NSWLEC 491 APPLICANT Calvert de Witt & Taylor Pty Ltd PARTIES : RESPONDENT Dungog Shire Council FILE NUMBER(S) : 10529 of 2004 CORAM: Brown C Development Application :- subdivision KEY ISSUES: concessional lot weight to be given to draft plan impact of nearby bulk store Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Dungog Local Environmental Plan 1990 draft Dungog Local Environmental Plan 2003 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, ; CASES CITED: Mathers v North Sydney Council (2003) NSWLEC 84, ; Architects Haywood and Bakker Pty Ltd v North Sydney Council (2000) NSWLEC 84 ; Hilley v Blue Mountains Council (2004) NSWLEC 412. DATES OF HEARING: 26/08/04 EX TEMPORE 08/26/2004 JUDGMENT DATE : APPLICANT Mr G Williams, solicitor SOLICITORS Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT Ms D Grant, solicitor SOLICITORS Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner G T Brown 26 August 2004 10529 of 2004 Calver de Witt & Taylor Pty Ltd v Dungog Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Dungog Shire Council (the council) of Development Application DA245/2003 for the subdivision of land known as Lot B in DP 406291 Chichester Dam Road, Bandon Grove (the subject site). 2 The hearing commenced on the subject site with the location of the proposed lot pegged for identification. Other relevant matters in the area were observed and the parties adjourned to the Bandon Grove Community Hall for further submissions. Following the submissions, the Court handed down judgment in the following terms. 3 The subject site has an area of 72.4 hectares and it is proposed to subdivide the lot into two lots. Lot 181 will have an area of 3 hectares and Lot 182 will have an area of 69.4 hectares. An existing dwelling and ancillary buildings will be located on proposed Lot 182. A dwelling house entitlement is sought for proposed Lot 181. Access to proposed Lot 181 will be gained directly from Chichester Dam Road while the existing access point is to be utilised for proposed Lot 182. 4 The subject site is zoned 1(b) General Rural under Dungog Local Environmental Plan 1990 (the LEP). The proposal is permissible within this zone and satisfies the requirements for subdivision in cll 20 and 23. 5 The subject site is also subject to the provisions of draft Dungog Local Environmental Plan 2003 (the draft LEP). The subject site is zoned Rural 1(a) under the draft LEP and under the subdivision provisions in cl 29(3), a minimum lot size of 60 hectares is required. The draft LEP essentially removes the concessional lot provisions currently contained in the LEP. The draft LEP contains no savings provisions. 6 The issues in the proceedings can be grouped into two main areas. The first issue relates to the weight to be given to the draft LEP and the second issue relates to the proximity of the proposed lot to a bulk store used for the stockpiling of sawdust and possibly other materials. 7 On the issue of the weight to be given to the draft LEP, the question that the Court is to answer is whether sufficient weight should be given to the draft LEP to warrant the refusal of the development application. 8 In considering this question, the Court was taken to a number of recent decisions including Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, Mathers v North Sydney Council (2003) NSWLEC 84, Architects Haywood and Bakker Pty Ltd v North Sydney Council (2000) NSWLEC 84 and Hilley v Blue Mountains Council (2004) NSWLEC 412. 9 The general thrust of these judgements is that the greater certainty and imminence that the draft plan will be made, the greater weight should be given to its contents. In this case, the Court was provided with details of the status of the draft LEP. It has been widely advertised and the subject of consideration by the council staff, the elected representatives, the Department of Infrastructure Planning and Natural Resources (DIPNR) and Parliamentary Counsel. 10 Mr Gary Warnes, the Court appointed town planner, indicated that his discussions with DIPNR led him to conclude that the draft LEP was not imminent and certain because DIPNR had not prepared a s 69 Report on the draft LEP and that other matters within the draft LEP had not been finalised by the council. 11 Section 79C(1)(a)(ii) the Environmental Planning and Assessment Act 1979 requires Court to consider any draft environmental planning instrument that has been placed on public exhibition. The imminence and certainty of the draft LEP is a matter that is to be considered in the weight that should be given to the draft LEP in the assessment of the development application. 12 In my assessment of the evidence, I accept that there is a strong likelihood that the draft LEP will be adopted however I am not prepared to accept that it should be given sufficient weight to override the planning controls in the LEP for a number of reasons. 13 Firstly, the background documentation to the draft LEP found in the Dungog Shire Draft Rural Strategy outlines the basis for the abandonment of the concessional lot provisions in the LEP. At cl 9.3, the document describes the concessional lot provisions as contributing to the fragmentation of agricultural land that ultimately leads to conflict between incompatible uses. It also encourages dispersed development patterns. In this case, the agricultural land use of questionable value with NSW Agriculture raising no objections to the proposed subdivision. Also, the creation of this single lot is not likely to encourage dispersed development patterns with the prohibition of these concessional lots with the likely to gazettal of the draft LEP. 14 Secondly, evidence was provided to the Court of two approvals by the council on 11 May 2004 and 17 June 2004 using the same concessional lot provisions in the LEP that are now being used by the council to support the refusal of this application. Both approvals post date the earlier and largely unchanged provisions that are contained in the current form of the draft LEP. 15 The second issue relates to the proximity of the proposed new lot to an existing bulk store used for the stockpiling of sawdust. The council argues that the operation of the bulk store and the potential use of chicken compost to mix with the sawdust will potentially result in odour complaints. To support this proposition, the council argues that the 180 m separation distance between the proposed lot and the stockpile is inconsistent with the 400 m requirement in the council's Development Control Plan No. 1-Buffer Zones (DCP 1). 16 Mr Warnes rejects these concerns by stating that the requirement in DCP 1 is a reference to intensive livestock, or specifically poultry farms. In his view, any reference to DCP 1 is inappropriate, as bulk stores are not referred to in this document. 17 I note that while this conclusion was correct at the time of Mr Warnes' report, the council has since resolved to amend the DCP 1 to require a 400 m buffer to the storage of poultry litter, sawdust and other products. Notwithstanding the amendment, I do not accept that DCP 1 should be given any significant weight in these proceedings for the following reason. 18 The evidence suggested that there was a dispute between the council and the owner as to the legality of the sawdust storage. The owner of the property claims that the sawdust stockpile operates under the existing use rights although this is disputed by the council. This remained in dispute and is not a matter that could be considered as part of these proceedings. 19 The evidence that was presented to the Court indicated that the sawdust storage facility had been operating for many years. An inspection of the site by the council, some 6 years ago, found chicken litter stored with the sawdust. There was no evidence presented to the Court to suggest that this has continued since this time. In fact, the owner of a property on the opposite side of the street to the stockpile, Mr Parmeter, indicated on site that he had lived at his premises for five years and had experienced no particular problems with the use of the stockpile area. 20 Overall, I am not convinced that the use of the nearby site for the storage of sawdust (and putting aside whether it is operating illegally or not) would impact on the future residential use of the subject site. 21 On a consideration of the issues raised by the council, the approval of the subdivision is warranted. 22 For the foregoing reasons, the Orders of the Court are: 1. The appeal is upheld. 2. Development application No 245/03 for the subdivision of Lot B in DP 406291 Chichester Dam road, Bandon Grove is approved subject to conditions as set out in Annexure 'A'. 3. The exhibits are retained with the exception of exhibit 1. _______________ G T Brown Commissioner of the Court Conditions of development consent Annexure A Calver de Witt & Taylor Pty Ltd -v- Dungog Shire Council Development consent is granted to the subdivision of Lot B in DP 406291 generally inaccordance with the plan marked Attachment 1 and the following conditions. 1. Payment of a cash contribution to Council in accordance with the provisions of Dungog Section 94 Contributions Plan 2001 adopted in March 2001. The following contributions, which are subject to annual adjustment, are to be paid prior to the release of the linen plan and subdivision certificate – B. Williams Planning District (a) Roadworks $4,863.00 per lot (b) Bushfire Services $ 197.00 per lot (c) Recreation Services $ 593.00 per lot (d) Community Facilities $ 478.00 per lot Total $6,131.00 per additional lot created Reason : This development results in increased demand on existing amenities or services that has been identified in respective contribution plans. These plans are available for inspection at Council's offices, Dowling Street, Dungog. Council will hold the money payable under this condition and utilise these funds to upgrade amenities or services in the future. Advice: Copies of the Contributions Plan are available for inspection and purchase at Council's Administration Centre, Dungog. The applicant and / or subdivider should contact Council prior to the payment to determine the rate of contribution as such rates are revised from time to time. Staging of payments is permitted if staging of development is approved by the terms of this consent. 2. Suitable arrangements being made with Country Energy to ensure that – [a] electricity will be available to each allotment created by the subdivision when and if development is proposed on the land; [b] that any transmission lines or other assets of Country Energy on private land be "protected" by an easement; and [c] where development requires the relocation of transmission lines or other assets, the applicant is required to make satisfactory arrangements with Country Energy for such relocation to be carried out. Reason : To ensure that the interests and responsibilities of Country Energy and Dungog Council with regard to the timely supply of power connections are satisfied. Advice : Country Energy is responsible for the supply of electricity to this land. The applicant must contact Country Energy on all matters concerning electricity supply. A letter from Country Energy stating that satisfactory arrangements have been made for the supply of electricity in the subdivision is to be submitted to Council, and accepted, prior to the release of the linen plan of subdivision. 3. Suitable arrangements being made with Telstra to ensure that – [a] communication will be available to each allotment created by the subdivision when and if development is proposed on the land; [b] that any transmission lines or other assets of Telstra on private land be "protected" by an easement; and [c] where development requires the relocation of transmission lines or other assets, the applicant is required to make satisfactory arrangements with Telstra for such relocation to be carried out. Reason : To ensure that the interests and responsibilities of Telstra and Dungog Council with regard to the timely supply of telephone connections are satisfied. Advice: For details of arrangements pertaining to the land, applicants must contact Telstra direct. A letter from Telstra stating that suitable arrangements have been made is to be submitted to Council, and accepted, prior to release of the linen plan of subdivision. 4. A designated Building Envelope, approved by Council, is to be delineated and fully dimensioned on each vacant lot on the final plan of survey, and a Section 88B Instrument submitted for Council's acceptance and ultimate registration against the title of the proposed vacant lots stating inter alia that "a future dwelling house is to sited within the building envelope designated and detailed on the plan of survey" with Dungog Shire Council the nominated Authority empowered to release, vary or modify this Restriction". Reason: To ensure that proposed buildings are restricted to the designated Building Envelope. Advice: A "building envelope" is a parcel of land suitable for the siting of a dwelling-house which is not subject to hazards, such as bush fire risk; erosion, landslip, poor drainage soil or slope constraints; flooding; vegetation / habitat values; wildlife corridors; scenic amenity; buffer areas, or the like, and – [i] is based on the principles of the NSW Floodplain Management Manual; [ii] is set back from a road at a reasonable distance so as not to result in creating a visual intrusion on the rural landscape; [iii] can be accessed by an all – weather road; [iv] is capable of on-site disposal of domestic effluent; and [v] is located on a slope of 1 in 5. 5. An application to install and operate a sewage management system must be submitted to Council prior to the approval of any development requiring sewerage disposal 6. On – site sewage management systems for future development on this site shall comply with the design specifications provided in the geotech report by Valley Geotechnical [NSW] Pty Ltd – Report No 03/472/p dated 17 September 2003; 7. The plan of survey to be submitted as a condition of subdivision is to be amended from that plan accompanying the application to incorporate requirements specified in the conditions of subdivision approval. Reason: To comply with Council's requirements. 8. Creation of drainage, water, sewer and service easements where required and/or as directed by Council free of all costs to Council. Reason: To ensure that all easements are in place to satisfy Council requirements 9. Submission of an original plan of survey by a Registered Surveyor and ten (10) copies to Council for subdivision approval. Reason: To ensure compliance with Council's requirements. Advice: The final plans must conform generally with the subdivision proposal shown on the concept plan submitted with the Development Application received by Council on 30 September 2003 and incorporate Council's requirements. Council's fee covers the cost of providing copies of the plan of survey to relevant internal Council departments and to Government departments as required. 10. Application for a Subdivision Certificate is to be submitted to and approved by Council prior to release of the final linen plan of subdivision. Reason: To ensure compliance with Council's requirements. Advice : The fee for a Subdivision Certificate is $100.00. 11. A Subdivision Certificate will not be issued nor the final plan signed and released by Council until all conditions of consent have been complied with to Council's satisfaction. Reason : To ensure compliance with Council's requirements. 12. The subdivider shall ensure that satisfactory arrangements have been made with Council for the supply and erection of property identification numbers in accordance with Council's Rural Addressing Program. Reason : To ensure that property addressing is of a uniform nature. Advice : A payment of $55 to Council for each lot created is required for rural addressing purposes. 13. Specific written approval or stamping of design plans as approved by Council and payment of all relevant plan checking and supervision fees is required, prior to commencement of any clearing, construction or other associated activity required as condition of subdivision. Reason: To ensure that the development complies with Council requirements 14. The developer shall provide a driveway entrance to Council's standards. This work shall include, but not be limited to, removal of loose aggregate on the adjoining road, sealing of the driveway to the property boundary, installation of a concrete dish drain for drainage purposes and installing a width marker [sign code D4-3A, Left & Right] to identify the width of the grid at the entrance. The entrance shall be constructed so as not to impede the flow of water in any table drain. Reason : To ensure that the development does not adversely effect the public road drainage system. 15. At the access point provide a vehicle standing area which is relatively level (maximum grade 5%) with the road pavement for a minimum distance of 5m from the edge of the road / road seal at an approach angle of 70 o - 90 o . Reason: To provide satisfactory traffic conditions 16. Vegetation adjacent to the access driveway is to be cleared and regularly maintained in both directions over a width of 3m tapered over 8m length. Reason: To provide satisfactory traffic conditions 17. Prior to commencement, the subdivider shall remove all loose aggregate from the access, including the adjoining road. Should the subdivider choose, a quote for undertaking the works may be obtained from Council's Operations Engineer. Reason: To provide satisfactory traffic conditions 18. Payment to Council of a maintenance bond for works performed by private contractor being 5% of the contract price and applicable for 6 months from the completion date. Reason: Such bond is to ensure adequate performance of construction works carried out by private arrangement and is to be refunded after 6 months subject to satisfactory maintenance carried out by the developer as required by Council. 19. A Compliance Certificate is required for the entrance to ensure the entrance is constructed in accordance with the specification. The fee for the Compliance Certificate is $95.00. 20. Prior to issue of a construction certificate, the applicant shall prepare a draft risk assessment of all activities that will have an impact upon Council controlled land, particularly in terms of occupational health and safety. The applicant shall consult with Council regarding the risk assessment prior to its finalisation. Reason : Council is the controller of a portion of the premises where work shall be undertaken and is thus partly responsible for ensuring compliance with the NSW OH&S Act 2000 in this area. 21. During construction the applicant shall implement those controls identified in the final risk assessment that were deemed feasible to minimise or eliminate the risks identified. Reason : To comply with Council requirements 22. Council is to be given a minimum of two business days notice prior to the commencement of works that impact upon Council controlled land. Reason : This provides Council with the opportunity should resources be available to undertake a preliminary audit of compliance in terms of the risk assessment. 23. The land may be subject to flooding and if it is flooded Council will not, pursuant to Section 733, Local Government Act 1993, incur any liability in respect of the granting of this consent. Reason: To comply with statutory requirements 24. Access is to comply with section 4.3 "Planning for Bushfire Protection 2001". A registered surveyor is to provide Council with an identification survey confirming that the road and access complies with the Planning for Bushfire Protection requirements. Reason: To assist in fire fighting operations. 25. Any future Development Applications submitted, within this subdivision, under section 79BA of the "Environmental Planning and Assessment Act 1979" shall comply with "Planning for Bushfire Protection 2001". Reason: Condition.of General Terms of Approval issued by NSW Rural Fire Service 26. If any lot on the subdivision is to be filled by over 0.2 metres depth, the entire depth of fill is to be compacted to 95% standard in accordance with AS1289-E(1.1) and certified as such by a practising civil engineer or geotechnical consultant. Appropriate erosion and sediment control measures shall be utilised and maintained until adequate grass cover has established. Reason : To ensure that the development complies with Council requirements 27. The Applicant shall provide to two trees on site for every tree removed from the road reserve as a result of construction of the access. The Applicant shall provide to the Council details of the species and location of trees to be planted. _______________ G T Brown Commissioner of the Court 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.