Land and Environment Court of New South Wales CITATION : Webb (Graeme and Pamela) v Baulkham Hills Shire Council [2005] NSWLEC 80 APPLICANTS Graeme Webb and Pamela Dawn Webb PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 11018 of 2004 CORAM: Nott C KEY ISSUES: Development Application - Subdivision :- proposed subdivision of 2.011 ha into two lots - development standard of 2 ha - whether an objection under SEPP 1 should be upheld - consistency with the objectives of the zone - whether an unacceptable precedent will be created LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 Alcorn v Baulkham Hills Shire Council, 10290 of 2003, decided on 4 September 2003; Bennett Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 77; BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 (CA) ; Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380; Goldin v Minister for Transport (2002) 121 LGERA 101; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; CASES CITED: Legal & General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201 (CA); North Sydney Municipal Council v Parlby (10617/85, 13 November 1986, unreported); Schulz Nursery Pty Ltd v Baulkham Hills Shire Council [2005] NSWLEC 98; Seraphina Bell Pty Ltd v Willoughby Municipal Council (19676) 69 SR (NSW) 344 (FC); Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135 DATES OF HEARING: 13 December 2004 and subsequent written submissions. DATE OF JUDGMENT: 04/01/2005 APPLICANTS Mr C W McEwen, SC SOLICITORS Robilliard & Robilliard LEGAL REPRESENTATIVES: RESPONDENT Mr N D Howie, solicitor SOLICITORS Wilshire Webb JUDGMENT: In THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 1 April 2005 11018 of 2004: Graeme Webb and Pamela Dawn Webb v Baulkham Hills Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the council's refusal of a development application for a two-lot subdivision of lot 11 DP 626406 at 19 Glenhaven Road, Glenhaven (on the corner of Gilmore Close). 2 The plan of the proposed subdivision by G J Atkins Consulting Surveyors indicates that the total area of the subject land is 2.011 ha (although in some other documents the area is given as 2.025 ha). The proposed southern lot, lot 111, has an area of 0.77 ha; and the proposed northern lot, lot 112, has an area of 1.24 ha. 3 The proposed lot 111 has a frontage of 82 m to Glenhaven Road and a frontage of about 135 m to Gilmore Close, and there is an existing building (formerly used as a dwelling house) located on this proposed lot. A new residence exists on proposed lot 112, which has a frontage to Gilmore Close of 201 m. 4 On 11 August 1997, the council granted development consent (to DA 97/217) and building approval for the construction of the new residence and swimming pool on the northern section of the subject land. That consent was subject to the following condition: 34. The existing house to be rendered non-habitable within thirty (30) days of the occupation of the new dwelling. In this regard, a suitable bond or bank guarantee in the amount of $10,000.00 is to be lodged with the council and shall be refundable upon receipt of written advice of compliance of the condition above. 5 On 18 April 1998 the respondent granted development consent for the use of the original dwelling as a 22-place child-care centre with associated outdoor play areas and eight parking spaces. The child-care centre was approved with a building footprint of approximately 288 sq m and an adjoining covered play area of 63 sq m. The child-care centre was to rely on an aerated septic tank system for the treatment of waste. The use of the child-care centre did not commence and the development consent for that use has since lapsed. 6 The present development application for the two-lot subdivision was advertised and no submissions were received. The application was refused under delegated authority on 2 August 2004. 7 The subject land is zoned Rural 1(c) under Baulkham Hills Local Environmental Plan 1991. Clause 12 of the LEP contains a development standard requiring that any lot created by subdivision should have an area in this zone of no less than 2 ha. The area of the proposed southern lot is 38.5% of the required minimum area of 2 ha, and the northern proposed lot is 62%. 8 However, the applicants have lodged an objection under State Environmental Planning Policy No. 1—Development Standards seeking flexibility in the application of the development standard in the particular circumstances of the case. The council opposes the granting of consent pursuant to SEPP 1, claiming (among other things) that the granting of consent would undermine the consistent application of the development standard by the council. The key issue in the hearing of the appeal was whether it would be appropriate to uphold the objection under SEPP 1. The issues are more fully set out in a Statement of Issues dated 12 October 2004. 9 In accordance with the Court's Practice Direction No. 17, a helpful Statement of Basic Facts (prepared by Ms D Tillott) was filed and served. Annexed to this statement are plans showing, among other things, the zoning of the subject and adjoining lands (Fig. 1), the subject site with land contours (Fig. 2) and a plan showing lot sizes of land in the 1(c) zone in the locality of the subject land (Fig. 4). The Statement of Basic Facts includes a description of the proposal, the site and locality, the relevant planning controls and the recent development history of the site. Section 11 of the Statement of Basic Facts sets out the reasons for refusal of the application contained in the notice of determination dated 2 August 2004. 10 At the hearing, evidence for the council was given by Ms D Tillott, senior town planner – special projects, employed by the council. In addition to the Statement of Basic Facts, her written evidence is contained in a folder entitled Statement of Additional Facts & Assessment dated November 2004 (ex 3) and in a statement in reply (ex 4). For the applicants, evidence was given by town planner Mr N Juradowitch. There was also evidence from a Court-appointed town planner, Mr R Chambers, who was of the opinion that it would be reasonable to grant development consent subject to appropriate conditions. 11 As mentioned earlier, the LEP contains a development standard specifying that the minimum lot size for a lot created by subdivision in the 1(c) zone is 2 ha; and as set out in the Statement of Basic Facts, other planning documents, including DCP 1 and a draft LEP, also specify a minimum lot size of 2 ha. 12 Having inspected the subject site and many other rural-residential holdings in the locality and having reviewed all the evidence relating to the particular circumstances of this case, I have concluded, for the reasons given below, that development consent (subject to conditions) should be granted pursuant to SEPP 1. 13 Without intending to be exhaustive, the principles I have had regard to include: (1) In Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387, Lloyd J held that the application of SEPP 1 requires answers to the following questions: (i) Is the planning control a development standard? (ii) What is the underlying object or purpose of the standard? (iii) Is compliance with the standard consistent with the aims of SEPP 1, and in particular does compliance with the standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Act? (iv) Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (v) Is the objection well founded? (2) In addition, in exercising the Director's concurring function the Court should have regard to the matters in clause 8 of SEPP 1. The question of precedent is relevant under clause 8(b). (3) Even apart from clause 8(b) of SEPP 1, the probability of establishing an adverse precedent that is readily able to be invoked by developers of other land in the vicinity is a valid consideration: BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 (CA); Goldin v Minister for Transport (2002) 121 LGERA 101. (4) Consistency of decision-making must be a fundamental objective of those who make administrative decisions: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87] per McClellan CJ. (5) It would be an error of law to reject the SEPP 1 application merely because the percentage reduction from what would be required by the standard is substantial and not minor. In Legal & General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201 at 203, Gleeson CJ (with whom Samuels JA agreed) said: The argument of the appellant [council] amounted to a submission that there is in any given case some degree of departure from development standards beyond which the dispensing power conferred by SEPP No. 1 does not extend and, further, that whatever that degree might be, it was exceeded in the present case. Such an argument, if correct, would produce a most inconvenient consequence. (6) The consideration of relevant matters under SEPP 1 will often overlap with other merit considerations under s 79C(1) of the Act: cf. North Sydney Municipal Council v Parlby (10617/85, 13 November 1986, unreported) referred to in Bennett Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 77. Such is the case in the present appeal. 14 The applicants' objection under SEPP 1 is contained in Appendix 3 of the Statement of Environmental Effects (ex A) prepared by Mr Juradowitch. 15 The "Conclusion" of the Statement of Environmental Effects summarises the reasons why the council should grant development consent. I accept what is there set out with the proviso that the reference to "each dwelling" is taken to mean, in respect of proposed lot 111, the building that was formerly used as a dwelling. 16 Annexed to the Statement of Environmental Effects are the following reports in support of the proposal: (1) Report of Dr R Lamb, visual and landscape consultant, dated 10 December 2003. Dr Lamb was of the opinion that the proposed subdivision would not be contrary to the underlying intentions of the 2 ha development standard. He was of the opinion that the underlying intentions of the standard were to accommodate rural-residential development that is sympathetic with the environment, to minimise risks from natural hazards, to not unreasonably increase the demand for services and facilities, and to maintain the rural and open space character of the land. From a visual quality and amenity point of view, Dr Lamb considered that the proposed subdivision would be able to readily support rural-residential development that has the same standard of sympathy with the environment as the buildings that presently exist on the subject land. The subdivision would make no difference to the existing perception of the open space and rural character of the land. (2) Report dated 7 April 2004 by Dr Fisher of Forestry Services. This report concluded that an asset protection zone meeting the requirements of Planning for Bushfire Protection 2001 can readily be established on the southern proposed lot while allowing for a 20 m undisturbed area adjoining the centre line of the watercourse (which is the common boundary between the two proposed lots). The report noted that excellent access for fire protection is available to the site. (3) Report by Mr L Smith, arborist, of About Trees. This report noted that the site contains a bushland corridor and a creek-line that divides the property into two separate portions. Within this corridor is a remnant stand of Eucalyptus pilularis parramattensis and Allocasuarina torulosa . A plan attached to this report shows the proposed subdivision would preserve this bushland corridor and also provide a 40-m wide hazard protection zone for bushfire purposes. (4) Flora and fauna assessment dated February 2004 by Mr P Burcher. This report concluded that the subdivision would not have any significant effect on threatened species, populations or ecological communities listed under the Threatened Species Conservation Act 1995. 17 The existing buildings on the proposed lots are connected to reticulated water and electricity services. The new residence on proposed lot 112 was not required to connect to the sewer. In the future, if there is a replacement building approved for proposed lot 111, it appears that the building could be connected to the Sydney Water sewer located at the rear of existing dwellings on the opposite side of Glenhaven Road. In any event, it was agreed that there is adequate open area in the large setback between the building envelope on lot 111 and Gilmore Close where on-site disposal of effluent could occur. 18 The council did not dispute the findings in the reports mentioned in (2), (3) and (4) of par 16 above. As well, my inspection of the subject site leads me to agree with Dr Lamb's visual assessment given in (1). 19 The underlying objective or objectives of the 2-ha development standard are not stated in the LEP. In my opinion, the underlying objectives would appear to be the same as or similar to the underlying intentions enunciated by Dr Lamb in par 16(1) above; and the proposed development would be in accordance with those objectives. 20 Dr Lamb's visual assessment is confirmed by the court-appointed expert Mr R Chambers. The report of Mr Chambers (ex 2) gives acceptable reasons why the objection under SEPP 1 is well founded and why it is unreasonable and unnecessary in the circumstances of the case to comply with the 2-hectare development standard (see particularly his "Conclusion"). 21 In her evidence in reply (ex 4) Ms Tillott had said: In conclusion, it is considered that the objectives of the Rural 1(c) zone, in particular (a), (b) and (c), are best met by the subject land being developed for one dwelling house that is erected on the northern end of the lot and conversion of the existing cottage to a compatible activity or its demolition. The further intensification of the existing [original] dwelling and associated improvements or erection of a new larger dwelling is not in keeping with the objectives. However, the LEP does not require that the objectives of the zone must be "met" before development consent is granted. It is sufficient that the proposed development be "consistent with one or more of the objectives" (underlining added). In her oral evidence, Ms Tillott reiterated that the existing building (the former dwelling) on proposed lot 111 could remain for some permissible use. In my opinion this building would provide, as it has done in the past, a reasonable dwelling house, subject to development consent being obtained for the dwelling-house use after the registration of the plan of subdivision. Any expansion of the dwelling house would also be subject to development consent, and the council could refuse inappropriate development. As well, a condition of development consent for the subdivision will prescribe a building envelope for any additions to the existing building and for any new house on proposed lot 111, as recommended by Mr Chambers—see condition 8(c) discussed below. Compliance with this envelope would mean that a new house would have a large setback (in excess of 30 m) from the other road frontage of Gilmore Close, and the bushland corridor along the creek would be unaffected. 22 I have taken into account the coloured aerial photos with the lot boundaries overlaid on them that are the subject of Ms Tillott's evidence in exhibit 4. Most of the small lots having areas close to 2 hectares can be distinguished from the subject land for one or more reasons. For instance: (1) A number of the properties have certain cleared areas relatively close to an existing house on the lot, so that any additional house in the cleared area would appear to be in the same visual catchment as the existing house, unlike the situation with the subject land. (2) The property at 13 Glenhaven Road does have some vegetation separating a cleared area from the existing house, but this vegetation is not as dense as at the subject land, and it appears that vehicular access within No 13 would be available between the two portions of that property, which is not the case with the subject land. (3) At 150 Annangrove Road, extensive clearing of trees would be required to provide a reasonable curtilage for a home, for effluent disposal and fire protection. In contrast, appropriate areas for the existing buildings on each of the applicants' proposed lots already exist. (4) Several of the photos are of properties beyond the locality of the subject land. 23 As indicated in (3) of the preceding paragraph, the fact that bushland on the property at 150 Annagrove Road would probably have to be cleared would tend to suggest that it might not have been appropriate to use SEPP 1 to approve a subdivision of that property. Ms Tillott had recommended the application be refused. However, after the conclusion of the on-site hearing, I was informed in written submissions that council granted consent to that application. I am of the opinion that there is greater justification for granting consent under SEPP 1 to the proposal in the present appeal. 24 A combination of particular circumstances (some of which are overlapping) leads me to the view that it is unreasonable and unnecessary for the proposed development to comply with the development standard: * The elongated shape of the subject land allows the complete visual separation of the buildings on each proposed lot. * The division between the two proposed lots respects the natural features. * This division is where the land narrows to around 29 m and is more or less along the creek. * There is a dense bushland corridor along the creek which will be undisturbed by the subdivision or by any likely future development. * The existing buildings on each proposed lot are on cleared areas of land, and each area is accessible from and has a frontage to a separate road. * No practical access is possible through the bushland corridor separating the cleared areas on each proposed lot. * Immediately opposite the existing building on proposed lot 111 is a suburban housing estate. * The existing building on proposed lot 111 was not required to be demolished, and the proposed subdivision would not undermine the existing character of the 1(c) zone in this locality. 25 The combination of these particular circumstances distinguishes the present application from the proposed subdivision that was refused in Schulz Nursery Pty Ltd v Baulkham Hills Shire Council [2005] NSWLEC 98, where the land was flat and there were "few if any environmental or topographical constraints" [16] and where (from the aerial photo attached to the respondent's written submission) it seems that buildings on the proposed lot would not have been in separate visual catchments. 26 One or several of the above particular circumstances mentioned in par 24 may apply to other smaller lots in the locality but it would be rare that all the above circumstances would apply. The only lot referred to in the evidence that perhaps comes closest to having all the above circumstances is 83 Annangrove Road. I do not see that the approval of the present proposal would create an undesirable precedent or undermine the general application of the 2-ha standard in the LEP and DCP. 27 The proposed subdivision would allow a reasonable and economic use of the subject land, which in effect contains two physically separated parcels. In some circumstances, allowing an objection under SEPP 1 would result in disorderly development (cf. Alcorn v Baulkham Hills Shire Council, 10290 of 2003, decided on 4 September 2003)—this is not the case in the present appeal having regard to the particular circumstances relating to the subject land. The mere varying of a development standard cannot be regarded as allowing disorderly development. The whole purpose of SEPP 1 is to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary…" (clause 3). 28 Having regard to the evidence mentioned in pars 16 and to the combination of particular circumstances referred to in par 24 above, I am of the opinion that the proposed development is consistent with at least the following aim and objectives: (1) the aim of the LEP in clause 2(1)(d)—to facilitate and encourage development which is compatible with the environmental amenity and heritage of the Shire; (2) the objective of the LEP in clause 2(2)(b)—to protect areas from inappropriate development and ensure that local amenity is maintained and enhanced; (3) objective (a) of the Rural 1(c) zone—to accommodate rural-residential development that is sympathetic with the environment and minimises risks from natural hazards. 29 In the event that the Court was minded to grant development consent for the subdivision, the parties agreed that conditions 1 to 11 should be imposed, including condition 8(c). 30 In relation to condition 8(c), this is a desirable condition to be imposed, as the registration of the restriction as to user would give notice to an intending purchaser of the likely limitations on any subsequent development of lot 111. The council would be the releasor in respect of the restriction, and it would not be necessary for an applicant to apply to the Supreme Court to vary the restriction. It has been held that this Court, in hearing an appeal against the council's refusal of development consent, may exercise the council's power under the restriction to vary or revoke it: Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135, a decision of Stein J confirming my decision at first instance. It seems to me that such a restriction, registered on the title, would be in the public interest and would have a sufficient nexus to the development that is the subject of this appeal. If the restriction as to user was merely a condition of subdivision consent and was not registered on the title, a question may arise as to whether such a condition would be enforceable following the registration of the plan of subdivision: cf. Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59. 31 In considering a subdivision application, the likely future use of the subdivided land is relevant: cf. Seraphina Bell Pty Ltd v Willoughby Municipal Council (19676) 69 SR (NSW) 344 (FC) at 359–360 per Walsh JA, with whom Wallace P and Holmes JA agreed on this point. The most likely future use of lot 111 would be for a dwelling house, and the council was concerned that an extra-large house on proposed lot 111 would detract from the rural-residential character of the locality. Subject to development consent being obtained, the restriction as to user would allow a reasonably-sized house to be erected on lot 111. The restriction as to user would put an intending purchaser on notice that a mammoth-sized house similar to that on proposed lot 112 would be unlikely to be approved. Development consent for a dwelling-house use of lot 111, in relation to either the existing building or a new dwelling, cannot be granted (or at least cannot be implemented) until after the registration of the proposed plan of subdivision. 32 It could be noted that the diagram referred to in condition 8(c) only shows the southern section of the subject land. The remaining larger section of the subject land, including the bushland corridor along the creek, is not seen in that diagram, as it is beyond the right-hand border of the diagram. 33 Clause 10A(1) of the LEP provides: "A subdivision that creates separate land titles for each of the two dwellings resulting from dual occupancy development is prohibited." Mr C McEwen SC submitted that granting development consent for the proposed subdivision, subject to a condition that condition 34 of the consent dated 11 August 1997 be deleted, would not be contrary to that clause. However, to make it clearer that the proposed subdivision does not involve the creation of separate titles for two existing dwellings, I propose that the earlier consent should be modified by substituting a new condition 34 to the effect that the building on 19 Glenhaven Road must not be used as a dwelling house unless and until a new development consent is obtained for that purpose. Even though that building has a kitchen in it, the kitchen may be used for any other legitimate purpose for which consent could be granted, such as a meal-preparation room for a child-care centre (which was a previously approved use for the building). Also, it could be said that the two buildings on the subject land do not result from an approved dual occupancy development. 34 For those reasons, I am of the opinion that the objection under SEPP 1 is well founded and that as a matter of merit development consent should be granted. The orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for a two-lot subdivision of lot 11 DP 626406 at 19 Glenhaven Road, Glenhaven, subject to the conditions in annexure A hereto. 3. The exhibits may be returned. __________ A J Nott Commissioner of the Court rjs Annexure A Conditions of consent—subdivision of lot 11 DP 626406 GENERAL MATTERS 1. Approved Plan The subdivision being carried out in accordance with the approved plan of subdivision by GJ Atkins & Associates Consulting Surveyors ref. 0380-1 dated 15 August 2003. 2. Final Plan Pre-lodgement Prior to the submission of a subdivision certificate application, it will be necessary for the applicant to have had a final plan pre-lodgement meeting. The meeting is to be held to establish that all conditions of the endorsed subdivision consent have been completed to Council's satisfaction. Pre-lodgement meetings are to be held at a mutually convenient time and are to be arranged by contacting the Council officer responsible for the issue of the approved subdivision development application. It is suggested that before a final plan pre-lodgement meeting a copy of the final plan and 88B instrument be submitted to Council for checking so as to eliminate delays in the processing of the subdivision certificate application. 3. Tree Preservation Council's Tree Preservation Order requires the preservation of all trees and prohibits the ringbarking, cutting down, topping, lopping or wilful destruction of trees except with the prior approval of Council. 4. House Numbering Deleted. PRIOR TO ISSUE OF OCCUPATION AND/OR SUBDIVISION CERTIFICATE 5. Final Fees Payment of final fees in accordance with Council's Schedule of Fees and Charges. The final fees will be assessed following the submission of written advice from the applicant that all works have been completed. 6. Section 73 Certificate A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Coordinator. Please refer to the "Your Business" section of the web site www.sydneywater.com.au then follow the "e-Developer" icon or telephone 13 20 92 for assistance. Following application a "Notice of Requirements" will advise of water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and buildings, driveway or landscape design. 7. Final Plan of Subdivision The submission of a subdivision certificate application and final plan of subdivision with an 88B Instrument (where applicable) together with: - (a) Ten (10) copies of the final plan. (b) One (1) copy of the 88B Instrument creating easements, Positive Covenants and/or restrictions-as-to-user pursuant to the provisions of the Conveyancing Act 1919. (c) The completed checklist of conditions. (d) A computer generated copy of the subdivision on disk, in "Auto CAD DWG" format. NOTE: - Council will not accept the final plan of subdivision unless accompanied by all items detailed above. 8. Final Plan and 88B Instrument The submitted final plan and 88B Instrument are to provide for the following:- (a) Restricting Future Development – Asset Protection Zone (APZ) (i) No building or other improvement shall be erected on proposed Lot 111 unless a Development Application is approved by the Baulkham Hills Shire Council that includes the creation of asset protection zones, the area extent and position of which are to be determined by Council and the NSW Rural Fire Service. (ii) The registered proprietor/s of the proposed Lot 111 at the time when such Development application is approved by Council, shall submit a Positive Covenant for the maintenance of the asset protection zone, together with any other document or plan designating the area, position and extent of the said fuel reduced zone on the land hereby burdened. (b) Restricting Development – Riparian Corridor No development is to occur within 40 metres of the top of the bank of the creek within Lots 111 to 112 without the prior written approval of Council. (c) Restricting future development—general (i) Any new dwelling or extensions to the existing building including ancillary buildings such as garages, sheds and the like on proposed lot 111 shall not be erected outside the area cross-hatched on the plan titled "Building Envelope Diagram" reproduced at the end of these conditions. (ii) Notwithstanding (c)(i) of this condition, an outdoor open recreational structure such as a tennis court or swimming pool may, with the consent of the council, be erected within the area diagonally hatched on the said plan. (iii) No building or outdoor recreational structure or the like shall be erected between the areas referred to in (c)(i) and (ii) of this condition and Gilmour Close. 9. Provision of IE Services Submission of a compliance certificate confirming satisfactory arrangements have been made for the provision of Integral Energy services. 10. Provision of Telecommunication Services The submission of a Compliance Certificate from Telstra or their nominated New Estate Contractor confirming network infrastructure, service conduits, cabling and pits have been installed to the requirements of the service provider authorised under the Telecommunications Act. 11. Existing House Services All facilities (telephone, power, water, gas, etc) servicing the existing dwellings on proposed Lots 111 and 112 to be relocated wholly within that lot or contained within a suitable easement. This is to be confirmed in writing by a Registered Surveyor. 12. Modification of previous consent Pursuant to s 80A(1)(b) of the Environmental Planning and Assessment Act 1979, prior to the issue of a subdivision certificate, the council's consent dated 11 August 1997 (to DA 97/217) is to be modified by deleting condition 34 and substituting instead the following condition: 34. The existing building (former dwelling house) having a frontage to Glenhaven Road (on proposed lot 111, which is the subject of the Court's development consent dated 1 April 2005) must not be used as a dwelling house unless and until a new development consent has been granted for that purpose. (The applicants may give effect to this modification in accordance with s 80A(5) of the Act by a notice under clause 97 of the Environmental Planning and Assessment Regulation 2000.) 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.