Land and Environment Court of New South Wales CITATION : Jaworski & Roberts v Murray Shire Council [2004] NSWLEC 391 APPLICANTS Richard & Helen Jaworski and Lyn Roberts PARTIES : RESPONDENT Murray Shire Council FILE NUMBER(S) : 10207 and 10687 of 2004 CORAM: Murrell C KEY ISSUES: Subdivision :- Modification to subdivision consent for variation to setback from river bank - Erection of rural dwelling - bulk and scale and impact on river Environmental Planning and Assessment Act LEGISLATION CITED: Murray River Environmental Plan Murray Shire Local Environmental Plan State Environmental Planning Policy No. 1 CASES CITED: Winton v North Sydney City Council DATES OF HEARING: 08-09/06/2004 EX TEMPORE 06/23/2004 JUDGMENT DATE : APPLICANTS Mr J Webster, barrister SOLICITORS Francis Kelly & Grant RESPONDENT LEGAL REPRESENTATIVES: Mrs J Kelly, barrister SOLICITORS Kell Moore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 23 June 2004 10207 of 2004 Jaworski & Roberts v Murray Shire Council 10687 of 2004 Roberts v Murray Shire Council JUDGMENT 1 This is a verbal judgment for an appeal under s 96 and s 97 of the Environmental Planning and Assessment Act. By way of background the two day proceedings commenced on site on 8 June 2004, and then proceeded to the courthouse in Deniliquin. 2 The first appeal was against a refusal of the council to amend a s 96 application to modify a consent issued by the council relating to the subdivision of the land into three parcels. The subdivision consent also contained a condition for a setback from the 'high' bank of the Edward River, and in that regard the applicant is seeking an amendment to delete the word 'High'. 3 The second appeal arose during the proceedings, and it was agreed by the parties that it would be appropriate and efficient in the circumstances, to deal with the dwelling house application. The dwelling house had originally been refused by the council and an appeal had been made to the Court, however it was out of time. As such a new development application was lodged with the council, that was the same as the previous application refused by the council in January 2003. The proceedings in the s 96 application have been extended and the new appeal No. 10687 of 2004 is in respect of the erection of a dwelling house. In this regard the parties made submissions to the Court and his Honour Talbot J determined that, "For the short order of service, and for various requirements to be dispensed with, the wavering of the fee, and that further that the rules applicable to the filing and serving be dispensed with, and any further direction in that regard is delegated to Commissioner Murrell". 4 As I stated, it was agreed between the parties that it was efficient for the Court to deal with both appeals together. The appeal in respect of the s 96 application is 10207 of 2004. 5 The subject rural property is in a region that can be described as a rural low intensity area on the banks of the Edward River, a tributary of the Murray River. The Murray/Darling River system is recognised as a most important river system in Australia. 6 The issue for the council in these proceedings is whether the amendment to the original consent should be varied to delete the word 'High', and whether by deleting the word 'High' the objectives of the Murray River Regional Environmental Plan and the Local Environmental Plan would be achieved. In respect of the dwelling house it is considered by the council as to be inappropriate in terms of its bulk, scale, and size, which in the council's opinion is exacerbated by the setback. 7 The setback imposed in the consent of the subdivision is 60 m from the 'high' bank to the council seeks to have this maintained. The proposal is to delete the word 'high' which would have the effect of reducing the setback from the river from between 25 to 28 m. 8 The Local Environmental Plan states buildings must be 60 m from any bank of the river. I will go into the definitions of the banks and rivers and the bed shortly. 9 With respect to the three lot subdivision: Lot 11 includes the existing house of this was created with a 13 ha curtilage; Lot 12 was created as 93.5 ha as an agricultural lot, not allowing the erection of dwellings; and Lot 13 was created, the subject lot it has an area of 108 ha, and some 6.500 km of river and creek frontage. 10 The owners of the total parcel have lived on the land since approximately 1974, and have continuously, or nearly continuously occupied the land, and used it as an agricultural undertaking. 11 The issues in the proceedings concerning the s 96 application are: 1. Whether condition (e) of Development Application consent 94/01 should be modified to delete the word 'high'. 2. Whether the application to modify the consent complies with the objectives contained in clause 14 of Murray REP No. 2 about building setbacks. 3 Whether the building is dependent on a location adjacent to the River Murray? (It was agreed that the dwelling as such does not rely on a location adjacent to the river). 4. Whether the removal of the word 'High' as a condition of the consent would allow a development inconsistent with the planning principles for land degradation, landscape, and river related uses contained in part 2 of the Murray River Environmental Plan No. 2. 12 In terms of the Murray REP, No. 2. as amended from Murray River REP No. 1 there no longer a numeric setback required as contained in Murray REP No. 1. And Murray REP No. 1, gazetted in 1987, which stated: In relation to riparian land this consists of the bed of banks of a river, or is within 60 m of the banks of a river, and is within a non-urban zone. 13 In terms of the Murray REP No. 2, which is a later REP, 1994, it states that: The bank means a change of slope that defines the extent of the bed of the River Murray. And bed means the land which contains the River Murray, including that which is alternatively inundated or left bare from a rise or fall in the supply of water, but does not include any land inundated only in time of flood. 14 REP 2 also states that the setbacks in terms of cl 14(2): All buildings outside land zoned for urban purposes under an LEP should be set well back from the bank of the River Murray. The only exceptions are buildings dependent on a location adjacent to the River Murray. 15 The objectives of the building setback in REP 2: The objectives of siting buildings away from the River Murray are to maintain and improve water quality, minimise hazard risk, and the redistributive effect on flood water associated with the erection of buildings on the flood plain; protect the scenic landscape of the river and corridor; improve bank stability; and improve wildlife habitat. 16 The Murray LEP, on the other hand, of 1989, gazetted in 1990, contains the definition of bank to mean, "the limit of the bed of a river". And bed in relation to a river means "The whole of the soil of the channel in which the river flows, including that portion thereof which is alternatively covered and left bare as there may be an increase, or diminution, in the supply of what, and which is adequate to contain it at its average, or mean state, without reference to extraordinary pressures in the time of flood, or extreme droughts. 17 The relevant provisions also include development along rivers: That on land within zone 1(a) or 1(c) within 400 m of any bank of a river, a building, or any purpose, must seek the consent of the council. 18 Clause 32(b) states: On land within zone 1(a) or (c)" - which covers the subject land - and being within 60 m of any bank of the river. Unless in the opinion of the council the buildings ancillary to the use of that land for the purpose of recreation, or is to be used for the purpose of fisheries, irrigation", et cetera. The council shall not consent to an application made in accordance with subclause (i) unless in the opinion of the council the destruction of trees and the development of the land, including subdivision of the land, will be carried out in a manner which in respect of that land and the adjacent land minimises the risk of soil erosion and other land degradation, the loss of scene amenity, and the loss of the important vegetation systems and natural wildlife habitats, including fish habitat values. 19 In terms of the LEP it was not disputed that the 60 m, irrespective of how one then defines the bank, high bank, or any bank, is a development standard, and as such a SEPP 1 objection was submitted. Also a SEPP 1 objection was submitted in respect of cl 17(c), which states: The land has an area of not less than 120, but less than 500 ha, and the council is satisfied there is a minimum 250 megalitres of water allocated. And the land must have an area of 120 hectares. 20 The subject parcel has an area of 108, and for abundant caution a SEPP 1 objection was submitted in respect of this as well as to the 60 m standard setback from the river. 21 The issue of the setback is one that has created some confusion, and we heard from Mr Keyes, the director of environmental services with the Murray Shire council, that council has a practice of using the high bank in terms of applying the setback of 60 m. 22 It is also noted that in terms of definitions it is somewhat ambiguous. I turned to the Macquarie Dictionary, not that that is determinative especially where there are definitions within the instruments, but nonetheless just to try and assist the Court in the definitional problem of high bank, any bank, or the low bank. In terms of the Macquarie Dictionary the physical geographic definition, "The slope immediately bordering the course of a river along which the water normally runs." 23 Despite the definitions at the end of the day I must consider the merits of this application, which in many respects also overlap, or coincide with the SEPP 1 assessment. 24 The applicant submitted that the proposed dwelling house located closer to the bank was not inconsistent to the objectives of the REP and the LEP. The critical issue for the Court in terms of the objectives of the REP and LEP, and which also became evident from the evidence of the witnesses, was the visual impact of the proposed dwelling at the proposed location. 25 The proposed dwelling is at the highest point on the subject parcel of land. However, it is also noted that the area to which the council would prefer the dwelling house to be erected is of a similar height, although slightly lower. There was evidence to the Court that during times of extreme flood that the area where the house is proposed becomes an island cut off by the waters from the river, and the backflow from the meanders of the river. 26 The subject land is one that is typical of the Murray area with magnificent gums, where the river meanders around this slightly higher portion of land where the applicants would prefer to locate their dwelling. 27 The State Forest owns land on the opposite side of the bank, and the river is approximately 40 m wide, although and it is recognised that it is at very low point given that there has been a three year drought in the area. The council maintains that the dwelling in the proposed location would be visible from the opposite bank. 28 The respondent also claims that the house would be visible from the river itself by persons in boats using the river for recreational or other purposes. It is noted, and it was agreed between the town planning experts, that Murray River houseboats do not traverse this part of the river because of limited depth, and that there are fewer boats than in other parts of the system. Nonetheless the public can access this area in smaller craft, and it is visible from the State Forest area. 29 It was agreed between the town planners that effluent disposal is not an issue, provided drainage is directed away from the river. The main area of disagreement is whether the house should be agreed because of its visual impact from the River. The experts also did not agree on the issue of possible adverse effects on native vegetation. 30 The area where the house is proposed by the applicant is a recently grassed area, and there is no issue with disturbance of trees. It is noted that there has been some planting of indigenous vegetation and other forms of vegetation within a distance that is visible from the dwelling site and also from the river. 31 The proportion of the land bounded by the meanders is approximately 600 m wide. The proposed dwelling is some 59 m across, and the major part of that, some 49 m, is of two storey construction. The house has been designed by an architect who informed the Court that the dwelling reflects a contemporary interpretation of corrugated iron sheds, and that the siting of the house was selected because it was the best aspect for views and sun. And in this rural location it is appropriate and also affords views of the river from the upper level. 32 Sight lines were drawn which provided the Court with what portion of the house would be visible in terms of a person in a boat on the river, and in terms of someone in the State Forest area. From the diagrams one can see that the proposed dwelling would be visible from the opposite bank standing in the State Forest, as opposed to the upper floor of the dwelling in council's preferred location. From the river itself it is noted that the upper storey, if not slightly more, of the dwelling would be visible in the applicant's preferred location, and that the site lines show that the dwelling would not be visible from a craft in the middle of the water in the council's preferred location. 33 The issue in these proceedings, or the seminal issue is whether the visual impact of the proposed dwelling is one that would warrant refusal of the application. In assessing it I must also have regard to the other objectives contained in the REP, but at the end of the day the landscape in terms of the scenic landscape was the main issue in the proceedings. 34 The subject dwelling some recycling of grey water, and the effluent and stormwater drainage is to the rear of the dwelling. Council does not maintain that there would be a significant adverse impact on the water quality of the river system, and the impact is minimised. Furthermore It is not an issue in terms of whether the dwelling is located in the council's preferred location or the applicant's preferred location. 35 In terms of the bank's stability it is not a matter of concern in terms of the setback of the proposed dwelling some 60 m from what I will refer to as the low bank as it is also reasonably set back in terms of the high bank. The setback from the 'high' bank still provides a setback of some 32 m or thereabouts. 36 The issue of vegetation is not one that creates a problem. It is noted that there has been turfing of an exotic type of grass on the subject site, which was fertilised, and in that regard there was some concern about the impacts on the water quality. The Court was advised that the fertilising was for the first time the grass seed was put down to allow a coverage. On behalf of the applicant it was also submitted that there would be less agricultural activity, and therefore setting the dwelling where it is would be a benefit. At the end of the day these issues are not central to my determination. 37 With respect to the issue of impact in terms of the visual impact of the dwelling, I must have regard to the context in which this dwelling is proposed. The council is concerned about the visual impact and about the size of the dwelling. It is important to note this is not a suburban dwelling house, it is a large dwelling, and it is acknowledged as a large dwelling. But one must also have regard to the fact that this is a large dwelling on a large parcel of land, being some 108 ha, with a river frontage of, as I stated, 6,500 m, and the dwelling takes up approximately 1.8%. 38 Two site inspections were carried out to assist the Court, and as I stated there were additional sight lines prepared. Te Court recognises the River Murray system is extremely important, and it is important that development does not adversely impact on the River Murray. 39 I am satisfied that the objectives of the building setback in terms of the REP are satisfied by the proposal, and that whilst the dwelling house will be visible, its visibility is not one that would warrant refusal of the application. 40 I also must have regard to the provisions of the LEP, and this requires that similar considerations be given to the dwelling in terms of setback. The setback for dwellings requires that there be no adverse impact on the river system itself, and that the provisions in respect of the erection of the dwelling, or any development, are not a risk to soil erosion and other land degradation. 41 I am satisfied that the proposal is not antipathetic to the loss of scenic amenity, and the loss of important vegetation systems and natural wildlife habitat. It is noted that there are conditions with respect to landscaping. The purpose of landscaping is not to hide dwellings, but to complement same, and in this context of a rural setting with large curtilages around the dwelling it is appropriate that there be some native vegetation, and that is not objected to by the applicants. 42 As I have stated any vegetation should be seen in the context that this is a rural holding, and that it is anticipated there will be, and there should be, further large trees around the dwelling, but not such that views are completely obscured from the water or the State Forest of the proposed dwelling, or views from the dwelling are unreasonably obscured. 43 It was submitted that the house was located in order to achieve views, and yes the house is located in order to achieve views. That in itself is not something that would warrant refusal of the application. It is whether the location of the dwelling would then comply or satisfy the objectives of both the REP and the LEP, and in my assessment the proposed dwelling in the location preferred by the applicant would satisfy those criteria established in the REP 2, and the Murray Shire LEP. 44 The proposal is one that I consider is a reasonable expectation and the objectives of the standard are satisfied. As such I see no reason why the dwelling should not be located in the situation preferred by the applicant. I say this having regard to the context of this rural setting, and also the circumstances of the case in that this is the high point of the land. I also acknowledge that in council's preferred location it is also a high point of the land, but nonetheless I see no reason why one should not be able to attain views of the river from the upstairs portion of the dwelling, which will be achieved by the location a shown by the applicant. 45 The high bank. There was evidence to the Court that there has been consistency in terms of council using the definition of 'high' bank. It is noted that there have been exceptions in terms of other approvals and every case must be assessed on its merits. However, for clarify, and certainty in the planning process and its administration, it is suggested that council overtly articulate its practice/policy by an amendment to the LEP. 46 As I said, the definition is not one that I come to a final conclusion on in terms of this appeal. However, it has been instructive, or informative, to have regard to what the definition of 'bank' in the Macquarie Dictionary, which as I said states that, "A slope immediately bordering a course of a river along which the water normally runs". And in this regard there was a clear bank to which the water normally runs, or the point at which it comes to, and the proposed dwelling is set back 60 m from this point. 47. The LEP does, however, complicate it further by referring to 'any' bank. So for clarity there needs to be some definition of what 'any' bank means, or whether in fact that this be amended to 'high' bank, and high bank be within the definitions of the LEP. In this regard if council wishes to rely on the 'high' bank it should amend its LEP, thus providing the opportunity for proper consultation in terms of part 3 of the EP&A Act. 48. That being the case it seems to me that for abundant caution I should consider the SEPP 1 objection, and the SEPP 1 objection must have regard to the objectives of the LEP in terms of whether the proposed development would still achieve those objectives. And in terms of the Winton v North Sydney City Council case of Lloyd J, I am guided in assessing the variation to the standard under State Environmental Planning Policy No. 1. 49. Firstly it was agreed it is a development standard. One must look then at the objectives and the objectives can be informed by the REP and the LEP. And whether the proposed development in the circumstances of the case should be approved, and whether it is one that is consistent with the policy, that is SEPP 1. The purpose of SEPP 1 is to allow variations that are appropriate in the circumstances, and that satisfy the objectives of the standard. 47 In particular the LEP refers to development along river banks in cl. 30, and that is where the 60 m requirement from 'any' bank is found. And the matters that must be considered include, as I stated above, the risk to soil erosion and land degradation, the loss of scenic amenity, and the loss of important vegetation systems, et cetera. 48 I am satisfied that the proposal will not adversely impact on the natural environment. And the proposed location, as preferred by the applicant, satisfies the objectives. As such the proposal is one that, in the circumstances of this case, warrants approval. 49 In terms of the SEPP 1 objection, for abundant caution with respect to the minimum size of an allotment of 120 ha, I am also satisfied that the proposed development is one that has been assessed in terms of the previous subdivision application, and that a dwelling house can be erected on the subject site that satisfies a SEPP 1 assessment. 50 There was evidence given to the Court on behalf of the council, by Mr Keyes, an assessment planner and Mr Horsfall, a consultant town planner. Mr Horsfall was concerned about the bulk and visual impact of the development. He did state however, that the proposal does not raise an issue in terms of effluent, stormwater and quality of river water, but it was the scenic quality in terms of the bulk and visual impact that are not satisfactory in his opinion. 51 Mr Keyes, as I stated, said that council had consistently applied the 'high' bank, and therefore there should be no variation for this matter. He was also concerned about the bulk of the building in terms of its architectural design, form and materials, not being traditional, and therefore he did not think it would blend with the environment or the character of the area. On the other hand it was submitted on behalf of the applicant that there would not be Glen Murcuttt houses as we see today if it were not for some consideration of contemporary architecture and interpreting, the rural landscape. 52 One cannot shy away from the fact that the proposed dwelling is a large structure, but it is also designed in the landscape, and I am satisfied it will sit comfortably on the section of land as shown on the plans. The dwelling will be viewed from the river and one will see the top floor, and a portion of the lower floor. It will be seen from the State Forest, but that is many metres away, at least 100 m, from the proposed dwelling, and it is not something that will be intrusive in terms of one's overall cone of vision when viewed from across the river. Similarly, when viewed from the river itself it will be visible, but it will not be intrusive in terms of the area, and it will have the benefit of landscaping and a large curtilage. 53 The issue of the setback also raises the issue of concurrence. The REP is somewhat less definitive in terms of setback when it states, "Should be well set back", and in many respects I suppose that is something that can then be left to be interpreted in LEP's in terms of the actual dimensions. But nonetheless I am satisfied it satisfies the objectives of the REP. In terms of the LEP and the SEPP 1, whilst the Department of Infrastructure Planning and Natural Resources was consulted ITS concurrence was not sought for the development application. And the Department chose not to give evidence in the proceedings as such I must turn my mind to the Court Act, s 39, whereby the Court can assume the concurrence, or rather can make orders whereby the concurrence of a particular authority is required, and in this regard I exercise my jurisdiction under the Court Act. 54 The issue of flooding was not an issue. As I stated, this is the highest point on the property. The floor level of the proposed dwelling is to be 300 mm above the 1 in 100 year flood, and there is a condition to reflect this requirement. 55 The proposed dwelling house, as I stated, is one where I do not consider it unreasonable that on a large parcel of land for one to obtain views of the River, but this is very much said in the context that all the objectives are satisfied. Therefore in my assessment approval of the application does not create a precedent for variation of the setback, whether that be 'any' bank, the 'high' bank, or the bank. 56 The s 96 modification application to delete the word 'high' from the consent issued by the council for the subdivision would allow the dwelling house to be erected in the location shown on the plans. That is a 60 m setback from the bank of the is required and satisfied by the proposal. 57 In terms of evidence to the Court on behalf of the applicant, Mr Boyle appeared, although his wife's maiden name is on the dwelling house application appeal. Mr Boyle, described himself as a retiring farmer, and as I said, has lived on the subject land with his wife for over 30 years. 58 Mr Mitch also gave evidence to the Court on behalf of the applicants, and he is a land surveyor/town planner. And Mr Clements, the architect for the proposed development, also gave evidence to the Court. 59 I have considered all the evidence to the Court, including the site inspections which allowed very careful consideration of the proposed development with the benefit of height poles, and I have concluded, that the proposed dwelling and location is one that would not be intrusive or impact on the landscape. 60 There was discussion about rotating the building 2 to 5 degrees. Mr Keyes considered this would only lead to a slight decrease in the visual impact, and I am of the opinion that it is not necessary in the circumstances as the impact is not unreasonable. 61 By way of comment it is noted that the Rivers and Foreshores Act would require the proposed development to be integrated development, if it was closer than 40 m to the bank - and the bank for the purposes of the Rivers and Foreshores Act would be the lower bank, as I have described it. 62 Therefore on the basis of my assessment above, having regard to the evidence to the Court, the formal orders of the Court are: 1. Appeal No 10207 of 2004 under s 96 of the Environmental Planning and Assessment Act (the Act) to modify the consent for a three lot subdivision issued by the Murray Shire Council on 19 June 2001 is upheld and the word 'high' appearing before bank in condition (e) is deleted such that any dwelling erected on Lot 13 must be 60 m from the bank of the river. 2. Appeal No. 10687 of 2004 under s 97 of the Act in respect of the land known as Lot 13, DP 1036833 Parish South Deniliquin County Townsend is upheld: a) the objections submitted under State Environmental Planning Policy No 1 to vary the standards in the Murray Shire Local Environmental Plan 1989 in respect of: the 60 m setback from any bank in cl 30(2)(b); and the minimum allotment size for the erection of a dwelling in cl 17(c) are allowed. b) the development application submitted to Murray Shire Council for the erection of a dwelling is determined by the granting of consent subject to the conditions contained in Annexure 'A'. 3. The exhibits with the exception of the dwelling house plan, Exhibit G; the setback plan, Exhibit F; and the conditions, Exhibit 13, are returned. _ J S Murrell Commissioner of the Court nmc/rjs/mp Appeal No: 10207 and10687 of 2004 Annexure A Conditions of Development Consent Richard and Helen Jaworski and Lyn Roberts v Murray Shire Council CONSTRUCTION 1. The development is to be constructed as submitted in the approved plans A1.00, A1.01, A1.02, A1.03, A3.01 and A3.02 dated 9 October 2002. Council must be notified of, and consent to any amendments to the proposal. Reason: To ensure that the development is carried out in accordance with the plans submitted to Council and approved as part of the application. 2. A construction certificate must be issued by a Principle Certifying Authority (PCA) prior to any works being undertaken on site. Reason: To comply with the Environmental Planning and Assessment Act, 1979. 3. All building work must be carried out in accordance with the provisions of the Building Code of Australia 2004. Reason : To comply with the Environmental Planning and Assessment Regulation, 2000 4. Before commencing any work, a sign must be erected at the front boundary of the land clearly indicating the builder's name and licence number, house number and lot number of the land Reason : To comply with Council's requirements for the construction process. 5. All work forming part of this approval must be undertaken and carried out by licensed tradesmen. The applicant is to ensure that all tradesmen are appropriately licensed and approved to undertake the work they are performing. Reason : To ensure an appropriately qualified person performs installations. 6. All framework to comply with National Timber Framing Code AS 1684-1999. Reason : To comply with the Building Code of Australia 2004. 7. The proposed building must be provided with a subterranean termite management system utilising an integrated termite barrier system conforming to Australian Standard AS 3660.1. Reason : To provide protection for the building from subterranean termites. 8. Lighting from the dwelling both internal and external is to be designed and installed to minimise any overs pillage or infiltration to the natural areas of the site. Reason: To protect wildlife habitat and prevent impacts from residential uses to the riverine environment. PLUMBING AND DRAINAGE 9. An application is to be submitted seeking approval for sanitary plumbing and drainage works to be carried out with the dwelling. Such application is to be submitted and approved prior to any drainage works being undertaken on site. Reason : Council and statutory requirement of Local Government (Approvals) Regulation 1999. 10. All plumbing, sanitary plumbing and drainage works shall be carried out in accordance with the requirements of the Local Government (Approvals) Regulation 1999 and the NSW Code of Practice: Plumbing and Drainage, 2nd Edition. The floors of wet areas shall be of an approved impervious material, properly graded and drained. Reason : Council and statutory requirement of Local Government (Approvals) Regulation 1999. 11. All stormwater captured by the roof and hard surfaces associated with the dwelling are to be retained on site and not disposed of towards the river or the bank of the river. Existing drains that discharge to the bank of the river are to be diverted to the retention dam on site. Reason: To minimise erosion and to protect the water quality of the River Murray. 12. The finished floor level of the proposed building shall be a minimum of 300mm above finished ground level. Reason : To prevent damage to property and to prevent the creation of unhealthy or dangerous conditions. 13. The finished floor level is to be a minimum of 300mm above the 1% AEP flood height for the land. This level is to be checked and certified by a qualified surveyor prior to pouring of the slab or final siting of stumps. Reason : To ensure that the dwellings floor level is above the 1% AEP flood height. OCCUPATION 14. Occupation - The owner shall not allow or permit the building (or part of the building, in the case of alteration or additions) to be occupied or used, until an Occupation Certificate for the building is issued. Reason : To ensure compliance with conditions of consent and to comply with the Environmental Planning and Assessment Act 1979.. LANDSCAPING AND SITE WORKS 15. The dwelling access is to be provided with an all weather crushed rock surface. Where necessary a concrete culvert is to be provided where access is provided across table drains on Council road reserves. Such culverts are to be installed to the specifications provided by Council's Engineering Department. Reason : To ensure adequate all-weather access to the dwelling. 16. The dwelling is to be constructed from materials which blend in with the natural riverine environment. Details of materials, finishes and colour schemes are to be submitted to Council at the time application is made for a construction certificate. Reason: To ensure that the dwelling is complimentary to its riverine environment and to comply with Murray REP No.2. 17. There is to be no clearing of native vegetation other than that approved by the Department of Infrastructure, Planning and Natural Resources or in accordance with the provisions of the Native Vegetation Conservation Act, 1997. Reason: To comply with the Native Vegetation Conservation Act, 1997. 18. A detailed landscaping proposal must be submitted to Council with the Construction Certificate application. The landscaping plan must indicate the species and mature height of trees. Reason : To ensure that Council has an opportunity to comment on proposed landscaping and to ensure that proposed landscaping preserves riverine corridors. 19. Native grass plant species that are endemic or indigenous to the local area are to be planted on the top slope of the bank. Reason: To protect the riverine environment and maintain wildlife habitat. FLOOD LIABLE LAND 20. The subject land is flood liable and as such the construction or carrying out of any works across natural drainage courses or channels may require a permit under Part 8 of the Water Act 1912 as well as development consent from Council. Reason: To comply with the Water Act, 1912 and Murray LEP 1989. 21. The access road into the property and dwelling may not be raised higher than 150mm from natural ground level. Reason: To ensure that the access road does not impede the flow of flood waters across the property. 22. The buildings and all associated out buildings are to be located so that minimal disturbance to the free passage of flood waters occurs. Reason: To ensure that the development does not impede the flow of flood waters across the property. 23. The applicant is advised that Council cannot provide or guarantee flood free access to the subject land. Reason: Land surrounding the development is subject to flooding. Council cannot guarantee access to and from the property during periods of flooding. 24. All sub-floor construction of the dwelling is to be constructed out of materials that are resistant to inundation by floodwaters. A structural engineer is to provide certification of the design of all sub-floor materials and structure in relation to resistance to inundation by floodwaters. Reason: To ensure that the dwelling can withstand the impact of floodwaters and debris associated with flooding. _________________________ J S Murrell Commissioner of the Court mp 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.