Land and Environment Court of New South Wales CITATION : Mirvac Projects Pty Limited v Ku-ring-gai Council [2004] NSWLEC 359 APPLICANT PARTIES : Mirvac Projects Pty Limited RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11556 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application - Development Control Plan :- Community Title subdivision into eighteen lots previously approved by the council - Whether it is inappropriate to excavate Lots 13 14 15 and 17 at this time to the levels shown - Whether the retaining wall for the proposed slip-lane on Eastern Road should be approved given the lack of any engineering details and - The impact of the remediation works. LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO) - Ku-ring-gai Development Control Plan No 16 - 134-138 Eastern Road Wahroonga, (DCP16) - State Environmental Planning Policy No 19 - Bushland in Urban Areas, (SEPP19) - Rivers and Foreshore Improvement Act 1948, (RFI Act)· - National Parks and Wildlife Act 1974 No 80, (Parks Act) - Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 2, 5, 6 April 2004 and 27 May 2004; Mention 22 June 2004 and 7 July 2004 DATE OF JUDGMENT: 07/08/2004 APPLICANT Mr C W McEwen, barrister instructed by Mr M Driscoll, solicitor SOLICITORS: Coudert Brothers LEGAL REPRESENTATIVES: RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Abbott Tout JUDGMENT: In the Land and Environment Court of New South Wales Decision date: 8 July 2004 Commissioner S J Watts Mirvac Projects Pty Limited v Ku-ring-gai Council Judgment 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of an integrated development application to remediate and carry out bulk earth works at Lot 1 in DP 186622 and Lots 13, 14 & 15 in DP 12810, known as Nos 134-138 Eastern Road, Wahroonga. 2 The council granted consent to an eighteen-lot community title residential subdivision of the land that is accepted by both parties to be "physically commenced" and is extant. 3 The works the subject of this Class 1 application are those set out in Conditions 6 and 7 of that consent. 4 Relevantly, Condition 7 of the council's consent dated 19 February 2001 states: Pursuant to Section 80(4) and (5) of the Environmental Planning and Assessment Act 1979, the required stabilisation works shall not commence until a separate development application has been lodged and a consent has been granted for those earthworks and any relevant conditions of that consent have been satisfied. The application for development consent must be accompanied by suitable plans and supporting documentation to describe and detail the extent and nature of the proposed earthworks. An earthworks "management plan" shall be included in the application containing: (a) detailed location and types of erosion control measures; (b) dust control measures; (c) detailed runoff control measures in the area of the proposed works; (d) detailed tree protection measures; (e) details of source destinations and transport routs for fill required to be imported from, or disposed of, off site; (f) engineering details of proposed finished levels, and retaining works including proposed batters; (g) staging of earth works to minimise exposure of unprotected soils; (h) measures to ensure imported fill is weed-free; and (i) additional fees and plans for the purpose of "Integrated Development". 5 Under the council issued subdivision consent; the proposed earthworks within the council verge of Eastern Road would require no further development approval. However, during the course of the hearing, the applicant amended the design of the Eastern Road slip lane, to move the vehicular entrance to the land 5m further to the north, to construct a slip lane within existing paved road and to retain parts of the existing footpath and earth banks within the road reserve. The vehicular entrance has been revised primarily to retain three large eucalypts growing in the council verge and to better provide a vista from Eastern Road of the heritage building on the land. As this work departs from the original subdivision approval, that part of the original consent must be modified as part of the application now before the Court. 6 Prior to the hearing the council approved the removal of all trees on the land necessary to carry out the bulk excavation and remediation earth works. 7 I visited the land in company with the parties on the first day of the hearing where local residents gave evidence. I revisited the land on the afternoon of 27 May 2004 when two local residents gave evidence. 8 I am satisfied that the issues raised by the council in respect of the bulk excavation and remediation earth works have been adequately addressed during the hearing and when considered under s 79C of the Environmental Planning and Assessment Act 1979, I have concluded that the application should succeed. 9 I also approve the proposed new works within the council's verge in Eastern Road. The land 10 The land is situated on the southwestern corner of the intersection of Eastern and Burns Roads and has an area of 19,693.4m2. The land, which is rectangular in plan, has a frontage to Eastern Road of 202.3m and to Burns Road of 91.6m. The western boundary common to Turiban Reserve has a length of 202.1m, and the southern boundary has a length of 91.6m and is common to the largely unmade part of Water Street. 11 Erected on the land is a local heritage listed building known as 'Glenwood House', built c.1910, and formerly owned and operated by the Patrician Brothers. This building is to be retained and restored. 12 Other buildings, not of heritage significance, including dormitory facilities, a chapel and teaching facilities, are proposed to be demolished. 13 Much of the south sloping-land has been levelled and filled and there are un-retained embankments up to 5m high to the west and south west of the land. The land also falls towards Eastern Road and Water Street and to Lovers Jump Creek in Turiban Reserve. 14 Vehicular access is presently in the southeastern corner of the land off Eastern Road. 15 Trees grow around the perimeter and there are lawns and playing fields on other parts of the land. Immediately to the north of the existing buildings there is also a stand of trees. Elsewhere on the land remnant native species, and exotic tree species coexist. 16 Nearby there are large single dwelling houses set in large landscaped gardens. On Eastern Road to the south of the land there are dwellings for aged and disabled persons under State Environmental Planning Policy No 5. 17 The Wahroonga Public School is located to the west of the land in open space and near other residential properties. The canopies of some of the trees growing in Clive Evatt Reserve, opposite the land in Eastern Road, form a verdant arcade with the canopies of the trees on the land and within the Eastern Road council verge. This vegetation is an important feature of the Burns and Eastern Road intersection. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) 18 Under the provisions of the KPSO the land is zoned Residential 2(c) and dwelling houses, subdivision and ancillary uses are permissible with consent. 19 Some parts of the land are affected by bushfire as shown in the extract of the council's Bushfire Prone Land Map. Ku-ring-gai Development Control Plan No 16 – 134-138 Eastern Road Wahroonga, (DCP16) 20 DCP16 was adopted 27 March 1992, applies to the subject land, and aims to: (a) Encourage future development of the site that is of a form and nature which ensures the conservation of the natural landscape, cultural and historic elements; (b) Promote the retention of the identified heritage item as listed in the Ku-ring-gai Planning Scheme Ordinance; (c) Encourage the conservation of the historic and architectural integrity of the building by identifying an appropriate curtilage; (d) Ensure the protection of surrounding bushland reserves and existing trees from the impact and consequences of urban development; (e) Promote vehicular access to the site that is safe while being sensitive to the surrounding bushland and heritage significance of the site; and (f) Promote development of the site that is compatible with the character of the surrounding residential areas. 21 Clause 7.1 of DCP16 states: Any future application for subdivision of the site should include the following details as specified below: (a) Indication of the location of building platforms for each proposed allotment; (b) Evidence that proposed platforms (as identified in (a) above) can sustain development that will comply with the building size controls stipulated in Development Control Plan No 6; (c) Evidence that the identified building platforms maximise retention of significant trees and minimise the impact on the significance of the identified heritage item; (d) A review of environmental factors (REF) addressing the matters for consideration under Clause 9 of State Environmental Planning Policy No 19 – Bushland in Urban Areas and Section 90(1) of the Environmental Planning and Assessment Act 1979, (now s 79C); (e) A site plan at a scale of 1:200 or 1:500 showing: 1. The accurate location of all trees greater than 3 metres in height on-site and on adjoining boundaries and nature strips. The plan should include the following: i. Species name; ii. Trunk diameter 1.5 metres above the existing ground level; iii. RL at the base of the trunk; and iv. Height and spread of the canopy. 2. identify those trees to be removed for subdivision development works; and 3. the accurate location of other existing vegetation and plant associations on-site and on adjoining boundaries and nature strips. 22 Under the heading of access and parking the objective of cl 8 of DCP16 is: To provide safe access onto the site while minimising impact on the adjoining bushland and the extent of cut and fill. In addition, to encourage the retention of the vistas to the identified heritage item as indicated on Map No 1. 23 Under cl 8.1 of DCP16: No access shall be gained via Burns Road or Water Street in either the form of construction of a new road or driveway access. 24 Under cl 8.2 of DCP16: Access onto the site shall only be gained via Eastern Road generally in accordance with the areas indicated on Map No 3, (sic). 25 In fact, Map No 2 shows the access points within either a 30m strip at the southern end of the Eastern Road footpath mound or at the northern end of the same mound, [Exhibit 11 Map 2]. 26 The applicant proposes and has obtained approval from the council to access to the land between these two strips. The proposed new vehicular entrance moved 5m to the north of the original entrance would also be located between the two access strips. There is also proposed a single vehicular entrance in Water Street giving access to Lot 7 within the council approved subdivision. 27 The council raised no objection to the relocation of the entrance in Eastern Road and had previously raised no objection to the single entrance in Water Street. State Environmental Planning Policy No 19 – Bushland in Urban Areas, (SEPP19) 28 SEPP19 was gazetted 24 October 1986 and has been amended, applies in Ku-ring-gai. The aims of SEPP19 are: 2 Aims, objectives etc (1) The general aim of this Policy is to protect and preserve bushland within the urban areas referred to in Schedule 1 because of: (a) its value to the community as part of the natural heritage, (b) its aesthetic value, and (c) its value as a recreational, educational and scientific resource. (2) The specific aims of this policy are: (a) to protect the remnants of plant communities which were once characteristic of land now within an urban area, (b) to retain bushland in parcels of a size and configuration which will enable the existing plant and animal communities to survive in the long term, (c) to protect rare and endangered flora and fauna species, (d) to protect habitats for native flora and fauna, (e) to protect wildlife corridors and vegetation links with other nearby bushland, (f) to protect bushland as a natural stabiliser of the soil surface, (g) to protect bushland for its scenic values, and to retain the unique visual identity of the landscape, (h) to protect significant geological features, (i) to protect existing landforms, such as natural drainage lines, watercourses and foreshores, (j) to protect archaeological relics, (k) to protect the recreational potential of bushland, (l) to protect the educational potential of bushland, (m) to maintain bushland in locations which are readily accessible to the community, and (n) to promote the management of bushland in a manner which protects and enhances the quality of the bushland and facilitates public enjoyment of the bushland compatible with its conservation. 3 Application of Policy (1) Subject to subclause (2), this Policy applies to the areas and parts of areas specified in Schedule 1. (2) This Policy does not apply to: (a) land reserved or dedicated under the National Parks and Wildlife Act 1974, as an Aboriginal area, historic site, national park, nature reserve, state game reserve or state recreational area, or (b) land within a State forest, flora reserve or timber reserve under the Forestry Act 1916, or (c) land to which Sydney Regional Environmental Plan No 31—Regional Parklands applies. 4 Interpretation (1) In this Policy, except in so far as the context or subject-matter otherwise indicates or requires: bushland means land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. Council… main road… (2) A reference in this Policy to bushland zoned or reserved for public open space purposes is a reference to bushland within an area or zone identified by an environmental planning instrument as open space (other than for private recreation). (3) A reference in this Policy to disturbing bushland is a reference to removing vegetation from the bushland or causing a change in the natural ecology of the bushland resulting in the destruction or degradation of that bushland. 5 Relationship with other environmental planning instruments (1) Subject to section 74(1) of the Act and subclause (3), in the event of an inconsistency between this Policy and another environmental planning instrument, whether made before, on, or after the date on which this Policy is made, this Policy shall prevail to the extent of the inconsistency. (2) Without affecting the generality of subclause (1), in the event of an inconsistency between this policy and State Environmental Planning Policy No 4—Development Without Consent, this Policy shall prevail to the extent of the inconsistency. (3) Nothing in this Policy shall affect the operation of State Environmental Planning Policy No 14—Coastal Wetlands. 6 Consent to disturb bushland zoned or reserved for public open space (1) A person shall not disturb bushland zoned or reserved for public open space purposes without the consent of the council. (2) Nothing in subclause (1) requires development consent for the disturbance of bushland where it is being disturbed: (a) for the purposes of bushfire hazard reduction, (b) for the purpose of facilitating recreational use of the bushland in accordance with a plan of management referred to in clause 8 of this Policy, (c) for the purpose of constructing, operating or maintaining: (i) lines for electricity or telecommunication purposes, or (ii) pipelines to carry water, sewerage or gas or pipelines licensed under the Pipelines Act 1967, or (d) for the purpose of constructing or maintaining main roads. (3) Pursuant to section 30 (4) of the Act, the provisions of sections 84, 85, 86, 87 (1) and 90 of the Act apply to and in respect of development referred to in subclause (1) in the same way as those provisions apply to and in respect of designated development. (4) A consent authority shall not consent to the carrying out of development referred to in subclause (1) unless: (a) it has made an assessment of the need to protect and preserve the bushland having regard to the aims of this Policy, (b) it is satisfied that the disturbance of the bushland is essential for a purpose in the public interest and no reasonable alternative is available to the disturbance of that bushland, and (c) it is satisfied that the amount of bushland proposed to be disturbed is as little as possible and, where bushland is disturbed to allow construction work to be carried out, the bushland will be reinstated upon completion of that work as far as is possible. 9 Land adjoining land zoned or reserved for public open space (1) This clause applies to land, which adjoins bushland zoned or reserved for public open space purposes. (2) Where a public authority: (a) proposes to carry out development on land to which this clause applies, or (b) proposes to grant approval or development consent in relation to development on land to which this clause applies, the public authority shall not carry out that development or grant the approval or development consent unless it has taken into account: (c) the need to retain any bushland on the land, (d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland, and (e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes. 29 The land adjoins Turiban Reserve that has some SEPP19 bushland, and there is also bushland on the site. Rivers and Foreshore Improvement Act 1948, (RFI Act) 30 The RFI Act was gazetted 21 May 1948 and has been amended. Part 3A of the RFI Act relates to the protection of rivers and lakes. Under Part 3A: 22A Definitions In this Part: Constructing Authority , when used in connection with protected waters or land under or adjacent to protected waters, means: (a) if the bed of the waters is vested in the Waterways Authority or a Port Corporation (within the meaning of the Ports Corporatisation and Waterways Management Act 1995) —the Minister for Ports, or (b) if the waters are tidal and paragraph (a) does not apply—the Minister for Public Works, or (c) in any other case—the Ministerial Corporation. make an excavation includes cause or allow an excavation to be made. material means any part of the surface of any land or any matter lying beneath that surface. permit means a permit in force under this Part. protected land means: (a) land that is the bank, shore or bed of protected waters, or (b) land that is not more than 40 metres from the top of the bank or shore of protected waters (measured horizontally from the top of the bank or shore), or (c) material at any time deposited, naturally or otherwise and whether or not in layers, on or under land referred to in paragraph (a) or (b). protected waters means a river, lake into or from which a river flows, coastal lake or lagoon (including any permanent or temporary channel between a coastal lake or lagoon and the sea). remove material includes cause or allow material to be removed. 22B Permit required for excavation etc (1) A person must not: (a) make an excavation on, in or under protected land, or (b) remove material from protected land, or (c) do anything which obstructs, or detrimentally affects, the flow of protected waters, or which is likely to do so, unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations. (2) A person who contravenes subsection (1) is guilty of an offence and is liable: (a) in the case of a corporation—to a penalty not exceeding 1,250 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 600 penalty units for each day the offence continues, or (b) in the case of an individual—to a penalty not exceeding 600 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 300 penalty units for each day the offence continues. (3) It is a defence to any proceedings against a person in respect of a contravention of subsection (1) for the person to establish: (a) that the commission of the offence was due to causes over which the person had no control and that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence, or (b) in the case of proceedings for a contravention of subsection (1) (c), that the person could not reasonably have foreseen that the person's actions would result in, or in the likelihood of, the obstruction or detrimental effect concerned. (4) A person does not commit an offence under subsection (1) if the activity concerned relates to a work, or class of work, specified by the Ministerial Corporation by order published in the Gazette. 22C Grant etc of permit (1) Application for a permit is: (a) to be made to the Constructing Authority in the form approved by the Authority, and (b) to be accompanied by the fee determined by the Authority. (2) As a pre-condition to the grant of a permit, the Constructing Authority may require the applicant to give security for the due performance of the applicant's obligations under and in connection with the permit for an amount, in a form and on such terms and conditions as the Constructing Authority may require. (3) The Constructing Authority may, after any investigation it thinks necessary, refuse a permit or grant one subject to such conditions as it thinks appropriate. (3A) The issue of a permit in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 is subject to Division 5 of Part 4 of that Act. (4) The Constructing Authority may at any time by notice in writing given to the holder of a permit vary or revoke the permit or the conditions of the permit. (5) The conditions subject to which a permit is granted under this section may include conditions relating to the protection of the environment. 31 Lovers Jump Creek in Turiban Reserve is 'protected waters' and within 40m of the land. There are some parts of the proposed subdivision and the bulk excavation within 'protected lands' and requires consideration under Part 3A of the RFI Act. National Parks and Wildlife Act 1974 No 80, (Parks Act) 32 The Parks Act was gazetted 27 November 1974. 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation. (2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development. (3) In carrying out functions under this Act, the Minister, the Director-General and the Service are to give effect to the following: (a) the objects of this Act, (b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands. Part 8A Threatened species, populations and ecological communities, and their habitats, and critical habitat 118A Harming or picking threatened species, endangered populations or endangered ecological communities (1) A person must not: (a) harm any animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community, or (b) use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any such animal. Penalty: (a) in respect of any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years or both, and, in a case where an animal of any endangered species, population or ecological community is harmed, an additional 100 penalty units in respect of each animal that is harmed, (b) in respect of any vulnerable species—500 penalty units or imprisonment for 1 year or both, and, in a case where an animal of any vulnerable species is harmed, an additional 50 penalty units in respect of each animal that is harmed. (2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community. Penalty: (a) in respect of any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years or both, and an additional 100 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence, (b) in respect of any vulnerable species—500 penalty units or imprisonment for 1 year or both, and an additional 50 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence. (3) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence: (a) was authorised to be done, and was done in accordance with, a general licence under section 120, a licence under section 131, 132 or 132A, a scientific licence under section 132C or a licence granted under Part 6 of the Threatened Species Conservation Act 1995, or (a1) was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995, or (b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (b1) was authorised by, and done in accordance with, a conservation agreement, or (b2) was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995, or (c) was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or (d) was not done for commercial purposes and was done in relation to a plant that was cultivated by the person as a hobby or was cultivated by another person as a hobby, or (e) was done in relation to a plant that was obtained from a person who was authorised to grow and sell it by a licence issued under section 132. (3A) This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act. (4) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this section: (a) this section prevails (except in relation to a matter referred to in subsection (3) (b) or (c)), and (b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person's failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this section. 118C Damage critical habitat (1) A person must not, by an act or an omission, do anything that causes damage to any critical habitat. Maximum penalty: 2,000 penalty units or imprisonment for 2 years or both. (2) If a map of the critical habitat was published in the Gazette before the act constituting the offence was done or omitted to be done, it is not necessary for the prosecution to prove that the person knew that the habitat was declared as critical habitat or that the person knew that it was habitat of an endangered species, population or ecological community. (3) If a map of the critical habitat was not published in the Gazette before the act constituting the offence was done or omitted to be done, the prosecution must prove that the person knew that the habitat was declared as critical habitat or that the person knew, or ought to have known, that it was critical habitat. (4) It is a defence to a prosecution for an offence against this section in relation to an area of critical habitat that the Director-General has declined to publicly notify under section 146 of the Threatened Species Conservation Act 1995 that the accused did not know and could not reasonably be expected to have known that the area was critical habitat. (5) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence: (a) was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or (a1) was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995, or (b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (c) was authorised to be done by or under Part 2 of the Rural Fires Act 1997, the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or (d) was authorised by, and done in accordance with, a conservation agreement, or (e) was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995. (6) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this section: (a) this section prevails (except in relation to a matter referred to in subsection (5) (b) or (c), and (b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person's failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this section. 118D Damage habitat of threatened species, endangered population or endangered ecological community (1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind. Penalty: 1,000 penalty units or imprisonment for 1 year or both. (2) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence: (a) was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or (a1) was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995, or (b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (c) was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or (d) was authorised by, and done in accordance with, a conservation agreement, or (e) was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995. (2A) This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act. (3) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this section: (a) this section prevails (except in relation to a matter referred to in subsection (2) (b) or (c)), and (b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person's failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this section. The proposal and its history 33 Integrated development application No D/ 1163/ 03 was lodged with the council on 8 September 2003 for "Site remediation and bulk earth works with retaining walls as required by Conditions 6 and 7-DA 480/ 99", as amplified by the Statement of Environmental Effects and accompanying documentation lodged with the application including approval of the revised slip-lane and the bulk excavation within the road reservation for the purpose of facilitating the revised slip-lane. The works shown in plans in Exhibit B, as amplified by plans in Exhibit N, describe earthworks on the site to remediate existing uncontrolled fill and to bench the lots for future house construction. 34 The plans in Exhibit U depict the works for which consent is sought within the Eastern Road reserve and which would require modification of the council's original consent for subdivision of the land. 35 Mr Minto indicated that the council, on 27 March 2001, had approved development application No 480/ 99; to community title subdivide the land into eighteen (18) allotments. The council also granted an extension of time and the consent was to expire on 16 May 2004 if physical commencement were not established. The applicant and the council are now content that, with the demolition of some of the buildings on the land and other works related to the original consent, 'physical commencement' has been established. 36 Mr Minto stated that the proposal involves: 1. The stabilisation of existing areas of fill in accordance with Conditions 6 & 7 of Development Consent No. 480/99; 2. The remediation of areas of contamination on the land; 3. The carrying out of bulk earthworks so as to create the levels for the approved new access road and building platforms on the approved allotments; and 4. The carrying out of bulk earthworks to create levels for the slip-lane in Condition 33 of the council's consent. 37 He added that Conditions 6 & 7 of the Development Consent No 480/99 seek to stabilise an estimated 30,000m3 of fill, which was placed on the land about 30 to 40 years ago. Un-retained earth embankments of up to 5m in height are located near to the western boundary and the works would reduce and retain the depth of fill to around 3.5m. 38 Condition 6 does not require any determination by the Court as it simply requires a suitably qualified engineer to certify the works once completed. 39 An environmental & geotechnical assessment by Geotechnique Pty Limited indicated that the fill is also contaminated with discarded building materials such as lead and asbestos, and would need to be remediated if the land were to be used for residential purposes. 40 Craig & Rhodes Pty Limited prepared a Soil & Water Management Plan to reduce the environmental impacts of the proposal. 41 It is proposed to remove only trees previously approved by the council for removal under a landscape master plan or those located upon areas required to stabilised or remediated. New plan of remediation and stabilisation works 42 At the request of the Court the applicant prepared a new plan showing the extent of the disturbance of the remediation and stabilisation works within the site and in Eastern Road. [Note: Exhibit K, later amended in Exhibit N]. It was estimated that these works would disturb around 70% of the land area and part of the council verge within Eastern Road near the proposed entrance. Tree Preservation Order, (TPO) 43 Under a TPO and Condition 15 the council has granted consent to the removal of required to remediate and bench the land under the original subdivision consent. Notification The application was notified to nearby owners and occupants on two occasions and the objections of local residents are contained in Exhibits 1 and 2 and were considered by the Court. Additional resident submissions were received by the Court and contained in Exhibits 23 and 24. The council's decision 44 When the appeal was filed the council had not determined the application and thus it is a deemed refusal. 45 By notice dated 30 April 2004 the council refused the application for eight reasons, which are reflected in the issues. The hearing 46 The appeal was filed on 17 December 2003. 47 At the hearing the court heard evidence on behalf of the respondent council from: · Ms M Greenwell, landscape development officer of Ku-ring-gai Council, [Note: Statement of evidence Exhibit 5]; · Ms K R Hawken, development control engineer of Ku-ring-gai Council, [Note: Statement of evidence Exhibit 4]; · Dr A Clements, plant ecologist, [Note: Exhibit A Tab 8] · Mr D F Brew, resident of 'Eversley' No 86 Brayside Street, [Note: Exhibit 1 pp 24-5, pp 34-5 and Exhibit 2 p 49]; · Mr A J Parr, resident of No 43 Water Street, Wahroonga, [Note: Exhibit 1 pp 41-50, Exhibit 2 pp 13-5 (Mrs C Parr)]; · Mr J D Turner, civil engineer, Ku-ring-gai Council. 48 Various concerned residents gave oral evidence on-site on 2 April 2004 and on 27 May 2004 when Messrs Pointon and Parr gave evidence. 49 On behalf of the applicant evidence was given by: · Mr A J Halmarick, registered surveyor, [Note: Statement of evidence in Exhibit H and reply in Exhibit L and who also prepared the plans in Exhibit B and K]; · Mr P Gorman, environmental engineer, author of "Remedial Action Plan". 50 Other evidence on behalf of the applicant included: · Statement of environmental effects included in Exhibit A; · Plans of the application before the court, showing bulk earthworks and retaining walls, bulk earthwork section through each lot, soil and water management plans and tree retention and removal plan, [Note: Exhibit C]; · Landscape design report and stamped plans 27 February 2004, Tree Master Plan as per Condition 16 of the original consent. Concept Landscape Master Plan, [Note Exhibit D]; · Report Context Landscape Design dated 18 March 2004 by Ms O Choong, [Note: Exhibit E], and response to the council's evidence by Ms O Choong, [Note: Exhibit M]; · Tree report of Mr D Ford 19 March 2004 [Note: Exhibit F]; · Mr A Minto's town planning statement [Note: Exhibit G]. The issues 51 On 23 February 2004 the council filed a statement of issues, [Note: Exhibit 10]: 1. Whether excavation into the existing natural ground levels of the site is considered acceptable given that the new dwellings will be located on the subsoil making it difficult to provide successful landscaping of these sites and retain existing trees. In particular lots 13, 14, 17 and part of lot 15 have not previously been filled and do not need to be remediated. Natural ground level should be maintained on these lots. 2. Whether excavation into the existing embankment along Burns Road is considered to be acceptable as there are young indigenous trees regenerating over the embankment, which should be retained, and the banks provides an existing buffer between the site and Burns Road. 3. Whether filling the front garden to the Eastern Road frontage of lot 4 is acceptable. The natural ground levels should be maintained forward of the building to minimise unnecessary filling and retaining wall heights adjacent to the entry road, as well as to visually sit the building into the existing setting. 4. Whether the earthworks shown for many of the lots is associated with site remediation works and not part of the bulk earthworks, as more detailed excavation will be required at the time of dwelling construction. Lot 7 in particular does not need to be benched at this stage. 5. The proposed building platforms for lots 6, 9, 10 and 11 extend beyond the existing top of the bank, which results in steep banks to the lower retaining walls adjacent to the reserve. All retaining wall heights should be kept to a minimum. 6. A group of native trees adjacent to Burns Road west of the corner with Eastern Road are to be retained as indicated is the landscape master plan, as existing fill appears to be minimal in this area. 7. Whether the Remedial Action Plan dated 13 January 2004 (No. 4669/1-AD) adequately addresses the relevant legislation. On page 11 of the report the legislation referred to has been repealed and replaced with the Protection of the Environment Operation Act 1997. Therefore, all repealed reference should be replaced with current legislation. 8. Matters raised by objectors. 52 The experts conferred, as required by the Court rules and the following emerged as the agreed salient issues: · Whether it is inappropriate to excavate Lots 13, 14, 15 and 17 at this time, to the levels shown; · Whether the retaining wall for the proposed slip-lane on Eastern Road should be approved given the lack of any engineering details; and · The impact of the remediation works. The evidence and findings Whether it is inappropriate to excavate Lots 13, 14, 15 and 17 at this time, to the levels shown 53 Ms Greenwell outlined the council's case in respect of this issue. She was of the opinion that if the lots were excavated, the trees proposed within those lots would not have sufficient depth of soil to flourish. The reason for her concern related to the fact that the proposed new ground levels would necessitate the removal of topsoil and if left as originally proposed only subsoil would remain within which to plant trees. The applicant accepted this criticism and amended the plan to provide topsoil of sufficient depth to support trees in excavated swales 1m deep on Lots 13, 14, 17 and 15 as shown on the plan in Exhibit N, (originally Exhibit K). 54 Ms Greenwell considered this to be "…design on the run". Also she was concerned the indication of topsoil locations on those lots on the plan in Exhibit K might create "confusion" in the minds of those required to implement the tree-planting regime. She conceded that the position of the trees was shown on the landscaping master plan within the area of the proposed swales. 55 If the landscaping were to be carried out in accordance with the landscaping master plan, I am satisfied that a private certifier would have sufficient information before him/ her to carry into effect the proposed tree planting in soil of sufficient depth to support growth. I am also satisfied that soil in swales to a depth of 1m would be provided on Lots 13, 14, 17 and 15 of sufficient depth to establish those trees and to ensure their health and vigour in the long term. 56 In this regard I prefer the evidence of the applicant that the depth of soil would be sufficient and that there would be no confusion as to what is proposed. I would not refuse the application for this reason. Whether the retaining wall for the proposed slip-lane on Eastern Road should be approved given the lack of any engineering details 57 Ms Greenwell, indicated that the retaining wall along the boundary of Lot 4 on the Eastern Road frontage required for the original slip lane, would be around 2.6m high. She suggested that the ground near the entrance be terraced by erecting two retaining walls on the council verge so as to reduce the visual impact of that proposal and suggested that if the footpath were raised up above the level of the road there "…might be less of a problem". 58 This earlier proposal for the slip lane has been superceded by the proposal for a slip lane within the road pavement of Eastern Road as described in the plans in Exhibit U. 59 The applicant now proposes to move the proposed entrance road 5m to the north and to provide the slip lane on the bitumen road pavement of Eastern Road by moving the centreline of that road one lane to the east. The public footpath within the council verge to the north and south of the proposed entrance would remain largely intact and the large trees growing within the road reserve would be retained. 60 There would be need to regrade the public footpath in the vicinity of the proposed new entrance. Mr Halmarick prepared a longitudinal section along the council footpath that shows that it may be regraded so that at no point would it exceed a longitudinal grade of more than 14%, [Note: Exhibit AC]. Such a grade would be no steeper than footpaths in the same area of the land and I consider this to be acceptable. 61 Despite the position of the access roadway to the land being outside the access zones anticipated by the DCP16, Map 2, for vehicular access to the land from Eastern Road, I am satisfied on the evidence of Mr Halmarick that the objectives of DCP16 would be met. 62 I am satisfied that the new plan, known as Option 2, would go some way to reducing the concerns of Ms Greenwell, as the land on either side of the proposed new entrance would be terraced as she had suggested. The Option 2 plans indicate that the new vehicular entrance to the land would present well to Eastern Road, provide safe access and maintain views of the heritage building on the land. 63 The only adverse environmental impact that I have identified is that some on-street kerbside car parking would be removed from the eastern side of Eastern Road in the vicinity of Clive Evatt Reserve and in front of one or two residential properties to the south of the reserve. The amended plan was advertised and the council received no objection from residents of those properties so I have given little weight to this deficiency. 64 Mr Turner, the council's engineer, was satisfied that the proposal to provide a slip lane within Eastern Road as shown in Exhibit U was authorised by the council's original subdivision consent and no further consultation with the local traffic committee was necessary. 65 I would not refuse the application for this reason. The impact of the remediation works 66 Ms Hawken addressed the impact of the remediation works as shown in Exhibits B, K and now N, and her principle concern in this regard was the treatment of the western slope. She pointed to the fact the geo-technical reports had identified this area as being of very high instability and would need to be brought into medium risk category. She referred to the information gathered in Bore Holes BH 205 and 207 and that if this area were left undisturbed the instability issue would not be addressed. She considered that the erection of retaining walls in this steep western slope area would not address her underlying concern. She considered that further geo-technical data was required. 67 She acknowledged that although the stability of the land had been agreed between the technical experts in Exhibit 8, she insisted there might still be a need for two retaining walls in steep western slope area and Lot 7 instead of one. She said, "…my feeling is that the depth of filling might be locally greater or less and the retaining walls might be higher than shown on the sections". She said, "…the plans should reflect that". She suggested that in the absence of further detail on the retaining walls in this area a 'deferred commencement' consent would be preferred. 68 However, she agreed in cross-examination, that the applicant could seek a modification of the consent, under the Act, if the proposed retaining walls in this area were found to be inadequate in terms of height. In that event she agreed no deferred commencement condition would be required. 69 Despite Ms Hawken's reservations, as outlined above, I am satisfied that the parties are now agreed on this matter and I would not refuse the application for this reason. Other matters Blue Gum High Forest Ecological Community 70 With the large eucalypts in the council's verge, many trees near the intersection of Eastern and Burns Road and near the unmade section of Water Lane, retained, I am satisfied that the impacts of the proposal on the Blue Gum High Forest Ecological Community would be reduced to a level such that it would not warrant refusal of the application. 71 Dr Clements was confident that the proposal would maintain the environment of the Blue Gum High Forest Ecological Community, and as there was no dispute between the parties in this regard I would not refuse the application for this reason. Rivers and Foreshores Improvement Act 1948, (RFI Act) and General Terms Of Approval 72 To the west of the land within Turiban Reserve there is Lovers Jump Creek that comes under the definition of "protected waters' under the RFI Act. As a result, consent is required under Part 3A and general terms of approval are required. 73 The GTA's now have issued, [Note: Exhibit AE, GTAs by letter from DIPNR dated 1 July 2004]. These have been incorporated in the conditions of consent. DIPNR indicated that it did not wish to be heard in the matter. State Environmental Planning Policy No 55, (SEPP55) site remediation 74 The parties have dealt with this matter. There was no dispute that if the land were to be used for residential purposes remediation was necessary. There was no dispute between the parties as to the contents of the Remediation Impact Plan in Exhibit B and as a result I would not refuse the application for this reason. Conclusion 75 I accept the applicant's position in regard to the salient issues in dispute. I would not refuse the application for reason of any adverse environmental impacts resulting from the bulk excavation and remediation earth works. 76 I note also there is no dispute between the parties in respect of these bulk earthworks despite the fact that the council has recently refused this integrated development application. Conditions 77 The council and the applicant have agreed on those conditions in Exhibit AA as amended as per the conditions in Exhibit AB and as supplemented by the GTAs in Exhibit AE. Notice 78 A notice under cl 97 of the Environmental Planning & Assessment Regulation 2000, in Annexure B is required in respect of the modification to the original consent granted by the council. Such a notice would amend the original Condition 5. [Note: Exhibit Z] Orders 79 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Integrated development application No D/1163/03 lodged with the council on 8 September 2003 for "Site remediation and bulk earth works with retaining walls as required by Conditions 6 and 7-DA 480/ 99", at Lot 1 in DP 186622 and Lots 13, 14 & 15 in DP 12810, known as Nos 134-138 Eastern Road, Wahroonga is approved subject to Conditions 1 to 33 in Annexure A, and subject to the attached general terms of approval issued by DIPNR on 1 July 2004. 3. A notice is given under cl 97 of the Environmental Planning & Assessment Regulation 2000, in Annexure B. 4. The exhibits with the exception of Exhibits B, D, N, U, X, AA, AB, AC, AD, AE, 10 and 12 are returned. S J Watts Commissioner of the Court sw Appeal No: 11556 of 2003 Conditions of integrated development consent Annexure A Mirvac Projects Pty Limited v Ku-ring-gai Council Premises: No 134-138 Eastern Road, Wahroonga 1. The development to be generally in accordance with Integrated Development Application No 1163/03 and the following which were submitted as part of the development application: · Site Survey – Bee + Lethbridge - Dwg Ref: 9518; · DA Constraints Plan Dwg Ref: 311-03L2, 05.05.03, shows extent of uncontrolled fill revised 1.9.03; · Section Location Plan Dwg Ref: 31102e02a, 04.12.03; · Sections 1,2 & 3 Plan Dwg Ref: 31102e03a, 05.12.03; · Sections 4, 5, 6, 7, 8 & 9. Dwg Ref: 31102e04a, 05.12.03; · Sections 10, 11, 12, 13, 14. Dwg Ref: 31102e05a, 05.12.03; · Soil + Water Management Plan. Dwg Ref: 31102z01a, 05.12.03; · Soil + Water Management Notes. Dwg: 31102z02, 01.09.03; · S.E.E prepared by Craig + Rhodes 10 September 2003 & amendments to S.E.E 8 December 2003; · Environmental Site Assessment Report No. 4669/1-AB, Geotechnique, 12 February 2003; · Remedial Action Plan Report No: 4669/1-AD, Geotechnique, 13 January 2004; · Traffic Management Plan for Earthworks and Remediation, Ref: 5410, Colston Budd Hunt & Kafes, January 2004; and · Report by Anne Clements and Associates dated 7 December 2003, except as modified by the following plans which are also approved as part of this integrated development consent: · Plan Showing Proposed Bulk Earthworks and Retaining Walls for Proposed Community Title Residential Development – Dwg Ref: 31102e01g – amendment 7 dated 30.4.04; · Option 2 - Eastern Road Cross Sections Ch 33.102 to Ch 81.058 – Dwg Ref: 31102e12 dated 30.04.04; and · Option 2 - Cross Sections Ch 3.307 to Ch 30.788 – Dwg Ref: 31102e13 dated 30.04.04. 2. Prior to the release of the Construction Certificate the Applicant shall submit a supplementary geotechnical report sufficient to allow detailed structural design of retaining walls and excavation batters on Lots 6, 7, 8, 9 and 10. 3. The Applicant shall submit design drawings prepared by a suitably qualified and experienced structural engineer for all retaining structures approved under this consent. The design(s) to be endorsed by a geotechnical engineer and submitted to the Principal Certifying Authority prior to the release of the Construction Certificate. The design drawings shall provide for: (a) a 5 metre splay in the retaining wall at the corner of Eastern Road and Burns Road; (b) no retaining wall is to be greater than 3.5 metres in exposed height in proposed lots, 6, 7, 8, 9, 10 and 11; (c) the indenting of the retaining wall along Eastern Road so as to enable the retention of the Eucalyptus saligna (Sydney Blue Gum) located mostly within Council's nature strip adjacent to the boundary of proposed Lot 15 and Lot 16. A pier and beam footing is required to support the retaining wall within an 8.0 metre radius of the trunk of this tree; and (d) the retaining wall along Eastern Road in Lots 15 and 16 shall be set back 0.5m from the boundary and be no higher than 1.5m except where indented around the Blue Gum noted in (c). The area in front of the wall will be planted to screen the wall. 4. Compliance with the requirements and recommendations of geotechnical reports submitted and approved in relation to the subdivision (DA 480/99) and this integrated development consent, including monitoring of works at the level recommended in such reports. 5. Prior to the commencement of the work subject of this consent, the Applicant will undertake further investigations to ascertain the existence of any fill containing contamination on proposed Lots 7, 8, 9 and 10 to the west of the proposed retaining wall and will submit the results of this further investigation to the Principal Certifying Authority. If fill containing contamination is found on proposed Lots 7, 8, 9 and 10 to the west of the proposed retaining wall it shall be remediated in accordance with the Remedial Action Plan prepared by Geotechnique (Report No. 4669/1-AD dated 13 January 2004). 6. Prior to the commencement of the work the subject of this consent, the Applicant will implement the traffic measures as recommended in Colston Budd Hunt & Kafes Pty Ltd Traffic Management Plan Ref: 5410, dated January 2004, and the Traffic Control Plan to be submitted and approved by the RTA. 7. Prior to the commencement of bulk excavation or remediation, the Applicant will install the sediment and erosion control facilities and measures in accordance with the Soil & Water Management Plan Ref. 311-02Z01a and 02a which is Annexure J to the Statement of Environmental Effects prepared by Craig & Rhodes Pty Limited dated 8 December 2003. These facilities and measures shall be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority. 8. All disturbed areas, which are not to be built upon or otherwise developed, shall be stabilised to provide protection from soil erosion within fourteen (14) days of final land shaping of such areas. The revegetation of the embankment to Eastern Road (Lots 15 & 16) and the embankment to Water Street (Lots 5 & 6) shall be carried out in accordance with the 'Landscape Planting Plan Vegetated Buffer Zones' Drawing No LSK – 001 prepared by Context Landscape Design and dated 16 February 2004 within thirty (30) days. Bush revegetation works required in Lots 7, 8, 9 and 10 shall be carried out in accordance with a plan to be submitted to and approved by Council. 9. The area to the west of the proposed retaining wall on proposed Lot 7, 8, 9 and 10, apart from the proposed building platform on proposed Lot 7, shall be revegetated in accordance with accepted bush regeneration practices. A plan and specification of these revegetation works shall be prepared in consultation with a qualified and practising bush regeneration consultant and submitted to Council. The bush regeneration works shall be carried out in accordance with the plan within thirty (30) days of the final land shaping of that area. 10. Any imported fill material shall be restricted to material from the local soil landscape on which the site is located or be derived from sandstone geology sites. 11. Constructed slopes are not to exceed 1V:3H gradient unless retained. 12. The Applicant shall engage a suitably qualified and experienced consulting arborist to supervise the removal of trees to be removed and the protection of trees to be retained in accordance with the Tree Removal Plan Tree Master Plan (Dwg. No LPM 03 Jan 04) prepared by CONTEXT Landscape Design and approved by Ku ring gai Council. If during the course of undertaking work on the site in accordance with this integrated development consent, contamination is discovered in proximity to a tree identified as being retained and in the opinion of the suitably qualified and experienced consulting arborist approved by the Council such contamination cannot be remediated without removal of that tree, that tree may be removed. 13. The excavation of fill from around the following trees shall be done with great care so that no tree roots of 50mm or greater in diameter located within the specified radius of the trunk/s, shall be severed or injured in the process of any site works during the remediation/earthworks period. A suitably qualified and experienced consulting arborist shall be present when this excavation work is being undertaken to direct and supervise this work. The arborist will decide if hand digging is necessary in close proximity to trees: Tree/Location Radius From Trunk Tree 92 – Eucalyptus saligna (Sydney Blue Gum)/Lot 4 5 metres Tree 94 – Eucalyptus saligna (Sydney Blue Gum)/Lot 5 7 metres Tree 8 – Eucalyptus saligna (Sydney Blue Gum)/Lot 12 6 metres Group of 4/5 native trees adjacent to Burns Rd In Lot 15 4 metres Eucalyptus saligna (Sydney Blue Gum)/Eastern Rd nature strip off eastern boundary of Lot 15 5 metres 14. No excavation shall be undertaken within the specified radius of the trunk/s of the following tree/s: Tree/Location Radius From Trunk Tree 12 – Eucalyptus saligna (Sydney Blue Gum)/ Adjoining property to the west of Lot 13 6 metres Eucalyptus paniculata (Grey Ironbark)/ Lot 14 adjacent to Burns Road 8 metres 2 x Eucalyptus saligna (Sydney Blue Gum)/ Lot 17 8 metres Notwithstanding, if excavation is required for the purpose of remediation within these radii, excavation for remediation may be undertaken if excavation is carried out with great care so that no tree roots of 50mm or greater in diameter located within the specified radius of the trunk/s of the following tree/s, shall be severed or injured in the process of any site works during the remediation/earthworks period. A suitably qualified and experienced consulting arborist shall be present when this excavation work is being undertaken to direct and supervise this work. The arborist would decide if hand digging is necessary in close proximity to trees. 15. Prior to the undertaking of excavation to remove fill within a 5 metre radius of the trunk of any of the indigenous trees to be retained on the embankment of Lots 5 and 6 adjacent to the Water Street road reserve, the Applicant shall consult with a suitably qualified and experienced consulting arborist and such excavation shall only be undertaken in accordance with the recommendations of the arborist. The arborist shall be present while this works is undertaken to supervise and direct as necessary. 16. Prior to the undertaking of excavation to remove fill within a 5 metre radius of the trunk of any of the indigenous trees which may be able to be retained within Lots 7, 8, 9 and 10 the applicant shall consult with a suitably qualified and experienced consulting arborist and such excavation shall only be undertaken in accordance with the recommendations of the arborist. In the event that contamination is discovered in proximity to a tree to be retained and in the opinion of the arborist the contamination cannot be remediated without removal of the tree, that tree may be removed. 17. In the event that excavation of the embankment in Lot 14 adjacent to Burns Rd is permitted under this consent, no excavation within a 3 metre radius of the trunk of the indigenous trees to be retained on the embankment shall be permitted until the applicant consults a suitably qualified and experienced arborist and such excavation shall only be undertaken in accordance with the recommendations of the arborist. 18. A Cash Bond/Bank Guarantee of $32,000 shall be lodged with Council prior to the release of the Construction Certificate to ensure that the following trees are maintained in the same condition as found prior to commencement site development work unless the tree is required to be removed due to the discovery of contamination in accordance with conditions 12 and 16. The bond will be returned following issue of the final Certificate of Compliance, provided the trees are undamaged. In the event that any specified trees are found damaged, dying or dead as a result of any negligence by the applicant or its agent, or as a result of the construction works at any time during the construction period, Council will have the option to demand the whole or part therefore of the individual bond amount that relates to that tree or those trees. Tree/Location Tree 92 – Eucalyptus saligna (Sydney Blue Gum)/Lot 4 $5000 Tree 94 – Eucalyptus saligna (Sydney Blue Gum)/Lot 5 $5000 Tree 8 – Eucalyptus saligna (Sydney Blue Gum)/Lot 12 $5000 Group of 4 native trees adjacent to Burns Rd in Lot 15 $2000 Eucalyptus saligna (Sydney Blue Gum)/ Eastern Rd nature strip off eastern boundary of lot 15 $5,000 Eucalyptus paniculata (Grey Ironbark)/ Adjacent to Burns Rd 14 $5,000 Tree 12 – Eucalyptus saligna (Sydney Blue Gum)/ Adjoining property to the west of Lot 13 $5000 19. Provision to Council prior to the issue of a Construction Certificate of a $45,000 bond to cover the restoration by Council of any damage to Council's infrastructure in the public road or for any incomplete works, caused as a result of construction works relating to the subject development. The bond shall be refundable following completion of all works relating to the proposed development, or at the end of any maintenance period stipulated by consent conditions, upon approval by Council's Director Technical Services. Council shall have full authority to make use of the bond for such restoration works as deemed necessary by Council in the following circumstances: (a) Where the damage constitutes a hazard in which case Council may make use of the bond immediately. (b) The damage has not been repaired, or incomplete works have not been completed, by the Applicant within 48 hours of the issue by Council in writing of instructions to undertake such repairs or works. 20. To preserve the following tree/s, no work the subject of this consent shall commence until the trunk/s are protected by the placement of 2.0 metre lengths of 50 x 100mm hardwood timbers spaced at 150mm centres and secured by 2mm wire at 300mm spacings. The trunk protection shall be maintained intact until the completion of all work on site. Any damage to the tree/s shall be treated immediately by an experienced Horticulturist/Arborist, with minimum qualification of Horticulture Certificate or Tree Surgery Certificate and a report detailing the works carried out shall be submitted to the Principal Certifying Authority: Tree/Location Tree 92 – Eucalyptus saligna (Sydney Blue Gum)/ Lot 4. Tree 94 – Eucalyptus saligna (Sydney Blue Gum)/ Lot 5. Eucalyptus saligna (Sydney Blue Gum)/ Mostly Eastern Rd nature strip off eastern boundary of lot 15. Group of 4/5 native trees adjacent to Burns Rd in Lot 15. 21. To preserve the following tree/s, no work the subject of this consent shall commence until the area beneath the canopy of the following tree/s is fenced off at the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site. Tree/Location Radius in Metres Tree 8 – Eucalyptus saligna (Sydney Blue Gum)/Lot 12 4 metres Tree 12 – Eucalyptus saligna (Sydney Blue Gum)/ Adjoining property to the west of Lot 13 6 metres Eucalyptus paniculata (Grey Ironbark)/ Lot 14 adjacent to Burns Road 8 metres 2 x Eucalyptus saligna (Sydney Blue Gum)/ Lot 17 8 metres 22. To preserve the existing indigenous trees located in Lot 18, a fence shall be erected along the existing driveway within Lot 18 from Eastern Rd to the protective fence proposed around the interwar building in Lot 3. No activities, storage or disposal of material is permitted within the fenced zone. The fence shall be maintained intact until the completion of all remediation and earthworks. 23. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing. 24. Upon completion of the installation of the required tree protection measures the Applicant shall contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. No works the subject of this consent shall commence until after the Council has inspected the tree protection fencing. 25. Prior to the issue of the Final Compliance Certificate, site remediation, including any remediation of proposed Lot 7, 8, 9 and 10, if required, shall be validated as recommended in the Remedial Action Plan (RAP) prepared by Geotechnique (Report No. 4669/1-AD, dated 13 January 2004). The validation shall be submitted to the Principal Certifying Authority. 26. On completion of the revegetation works in Lot 7, 8, 9 and 10 and on the embankments in Lots 5 and 6, and 15 and 16, a qualified landscape architect shall submit a report certifying correct installation, faithful to the landscape plans to the Principal Certifying Authority with a copy to Council, prior to issue of the final Certificate of Compliance. 27. The approved plans to be amended in accordance with conditions 94, 95 and 97 of the Subdivision Consent 480/99 dated 16 May 2001 prior to the release of the Construction Certificate. 28. The applicant shall comply with the conditions of consent of the Subdivision Consent 480/99 dated 16 May 2001 except as modified by this consent. 29. Noise control measures as recommended in the Tonin Report attached to the Remedial Action Plan shall be complied with. 30. Should the site engineer deem necessary to suppress dust as a result of work being undertaken in accordance with this consent, the site engineer may instruct the Applicant to install a sprinkler system linked to the town water supply to suppress dust. The applicant will obtain any necessary approvals or licenses for water use. 31. Development Consent No. 480/99 dated 16 May 2001 granted by the Council shall be modified by substituting condition 5 of Schedule A with the following new condition: "The development to be in accordance with Development Application No. 480/99 and Development Application plans prepared by Homeplan, dated 6 December 2000, Drawing No.3528ac.DA.00 and 3529aa.DA.00 and lodged with the Council on 6 December 2000 except as modified by the following plans: (a) Plan Showing Proposed Bulk Earthworks and Retaining Walls for Proposed Community Title Residential Development – Dwg Ref: 31102e01g – amendment 7 dated 30.4.04; (b) Option 2 - Eastern Road Cross Sections Ch 33.102 to Ch 81.058 – Dwg Ref: 31102e12 dated 30.04.04; and (c) Option 2 - Cross Sections Ch 3.307 to Ch 30.788 – Dwg Ref: 31102e13 dated 30.04.04." 32. The applicant shall submit a landscape plan for the proposed landscaping within the sliplane and entry location of the road reserve of Eastern Road for the approval of the council prior to commencement of the works. The landscaping works shall be completed in accordance with the plan prior to completion of dwelling construction. 33. The final location of the filling to Lot 4 will be determined following the submission of the house design in that lot to the satisfaction of the Council's Team Leader, Landscaping. S J Watts Commissioner of the Court Appeal No: 11556 of 2003 Clause 97 Environmental Planning & Assessment Regulation 2000 Annexure B Mirvac Projects Pty Limited v Ku-ring-gai Council Notice by:- NSW Land & Environment Court of Level 4 Windeyer Chambers.225 Macquarie Street Sydney 2000. Address Of Land to which Consent Relates:- 134-138 Eastern Road, Wahroonga. Particulars of Title: Lot 1 DP186622 and Lots 13-15 DP12810 being Volume 4721 Folio 29 and Volume 4296 Folio 216 (Auto Consul 4296-216). Description of Development Consent to be modified:- Development Consent No. 480/99 dated 16 May 2001 granted by Ku-ring-gai Council. Particulars of Modification:- Development Consent is modified by substituting condition 5 of Schedule A with the following new condition: "The development to be in accordance with Development Application No. 480/99 and Development Application plans prepared by Homeplan, dated 6 December 2000, Drawing No.3528ac.DA.00 and 3529aa.DA.00 and lodged with the Council on 6 December 2000 except as modified by the following plans: (a) Plan Showing Proposed Bulk Earthworks and Retaining Walls for Proposed Community Title Residential Development – Dwg Ref: 31102e01g – amendment 7 dated 30.4.04; (b) Option 2 - Eastern Road Cross Sections Ch 33.102 to Ch 81.058 – Dwg Ref: 31102e12 dated 30.04.04; and (c) Option 2 - Cross Sections Ch 3.307 to Ch 30.788 – Dwg Ref: 31102e13 dated 30.04.04. S J Watts Commissioner of the Court GENERAL TERMS OF APPROVAL RIVERS AND FORESHORES IMPROVEMENT ACT 1948 PART 3A PERMIT ERM03/4066 In accordance with the Environmental Planning and Assessment Act 1979 and Regulation 1994 (as amended) the Department of Infrastructure, Planning and Natural Resources (DIPNR) has an approval role in relation to Development Application 1163/03 (the DA) lodged with Ku-ring-gai Council (Council). A permit issued under Part 3A of the Rivers and Foreshores Improvement Act 1948 (R&FI Act) is required to carry out certain works, including excavations, on in or under "protected land". "Protected land", for the purposes of this DA, is land and material that is in, or within 40 meters of the top of the bank or shore of, "protected waters", and within Nos 134 - 138 Eastern Road Wahroonga, NSW. "Protected waters" include the watercourse within the Site, known as Lovers Jump Creek. Nos 134 - 138 Eastern Road, Wahroonga, NSW is hereinafter referred to as 'the Site'. Pursuant to Part 3A of the R&FI Act, DIPNR, having reviewed the documentation associated with the DA, herewith provides its General Terms of Approval, for inclusion as conditions of any approval that may be granted by the Court. Requirement for Permit 1. Any work which requires a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 ("Part 3A permit") is not to commence until such time as a Part 3A permit has been applied for, and subsequently issued by DIPNR. Any work the subject of a Part 3A permit must be carried out in accordance with drawings and any other documents required by these conditions, and which are approved by DIPNR, and which will accompany the Part 3A permit. Standard of Work 2. All works proposed must be designed, constructed and operated so that they result in NIL or minimal harm to aquatic and riparian environments and do not cause erosion, sedimentation, or increase flood levels of protected waters. Works that result in net positive outcomes for aquatic and riparian environments are encouraged. 3. All activities at the Site are to be undertaken by persons suitably experienced in that aspect of the work they are doing, and such persons must be under the direction and supervision of a person with knowledge, qualifications and experience to best practice in the relevant aspect of the operations being undertaken. Cessation of Works 4. If, in the opinion of a DIPNR officer, any work is being carried out in such a manner that it may damage or detrimentally affect protected, waters or protected land, or damage or interfere in any way with any work, such work shall cease immediately upon oral or written direction of such officer. 5. Should any of the conditions of the Part 3A permit not be complied with, DIPNR may issue a Stop Order on Part 3A permit related operations at the Site until the conditions have been complied with. Work as Executed Plans 6. If requested by DIPNR, work as executed survey plans of a professional standard, and including information required by DIPNR, shall be forwarded to DIPNR within 14 calendar days of such request. Remedial Works 7. The Part 3A permit holder shall carry out any instructions given by DIPNR with a view to preventing damage to the environment of protected waters or protected land. 8. If any Part 3A permit condition it; breached, the permit holder shall follow DIPNR directions to address the breach and shall rehabilitate the Site as directed by, and to the satisfaction of, DIPNR. If any breach of the permit conditions requires a special site inspection by DIPNR, then the permit holder shall pay a supplementary permit fee for this inspection and for each and every subsequent inspection until the breach has been rectified. Disposal of Vegetation 9. Any vegetation or other material removed front the area of operations shall be disposed of lawfully to an appropriate site where the debris cannot be swept into protected waters during a flood. Burning must not be carried out unless an approval has been obtained from the relevant authority(ies). Water Quality and Environmental Protection 10. The Applicant must ensure that the amount of dirty water and sediment from the Site that enters protected waters or that is exposed to the flow of protected waters, or that is likely to detrimentally affect water quality, riparian vegetation or habitat or the environment, is minimised in a manner acceptable to DIPNR. Site Water & Sediment Runoff Management 11. The Applicant must submit a Soil and Water Management Plan (SWMP) indicating how the works at the Site will achieve the outcome required in the previous condition. The SWMP must be prepared by a person, with professional qualifications, knowledge and experience to best practice, and to the satisfaction of Council and DIPNR, and approved by DIPNR, prior to the issue of the Part 3A permit. The SWMP must cover all works on protected land and in protected waters, and staging and maintenance requirements. The SWMP must meet the requirements outlined in the NSW Department of Housing's publication "Managing Urban Stormwater: Soils and Construction" (3rd Ed.)(1998). The SWMP is also to meet any EPA licence requirements. 12. All works and activities at the Site are to satisfy all requirements of Council in relation-to water pollution issues. Oils and greases, or any other contaminants, must not be permitted to pass to protected waters. 13. All relevant Site drainage and sediment and erosion control works and measures, and any other pollution controls, as required by these conditions, shall be implemented prior to commencement of any other works at the Site. Maintenance of Erosion and Sediment Control Measures 14. All erosion and sediment control measures at the Site are to be inspected and maintained as required on a weekly basis and immediately following any rainfall events to ensure the efficient operation of these devices. This obligation remains until the Site has been fully stabilised. Decommissioning of all sediment and erosion controls and water diversion structures 15. Decommissioning of all sediment and erosion controls and any water diversion structures must be documented in detail to the satisfaction of DIPNR. Decommissioning must meet the requirements outlined in the NSW Department of Housing's publication "Managing Urban Stormwater: Soils and Construction" (3rd Ed.)(1998). The timeframes for decommissioning are to be cross-referenced to the implementation of any riparian zone plantings. Decommissioning of sediment and erosion controls is not to detrimentally affect the implementation of the VMP. Resolution of inconsistencies 16. In the event that there is any inconsistency between the drawings, other documentation and the conditions herein, the interpretation that will result in the best outcome for the stabilisation of the Site and the subsequent rehabilitation and maintenance of the Site and protected land and protected waters is to prevail. Such interpretation is to be applied in consultation with, and with the approval of DIPNR. Any Part 3A permit issued to be kept current 17. Any Part 3A permit issued for works proposed under the DA, and as required by these conditions, must be kept current by payment of the appropriate fee until such time as the Site has been fully stabilised and rehabilitated, and any required maintenance satisfactorily completed and reported on, in accordance with these conditions. Any application for renewal is to be lodged at least a month prior to the expiry date of the Part 3A permit. General Advice A. A Part 3A permit, subject to conditions, will be issued for the proposed works upon application. B. Any Part 3A permit granted for works the subject of the DA will be for a period of one year. C. Prior to the issue of the Part 3A permit the applicant must provide DIPNR with the following: · A copy of Council's development consent including all conditions of approval. · Any approval from NSW Fisheries required by these conditions. · Sufficient number of sets of plans and other documentation that satisfy DIPNR's General Terms of Approval, and any associated recommendations, for distribution to: the proponent, Council, DIPNR and any other approval body likely to be affected by DIPNR requirements. · The appropriate Part 3A permit fee paid and the required bond provided to DIPNR. · Full details on land ownership of all areas affected by the proposed works, and authorisation for the works by the relevant landowners. D. The rehabilitation of the Site in accordance with the Part 3A permit conditions and to the satisfaction of DIPNR is the responsibility of the Part 3A permit holder and the owner or occupier of the land. E. The Part 3A permit holder and the owner or occupier of the land are responsible for construction of works or any excavation or removal of material undertakers by any other person or company at the Site. F. Any Part 3A permit granted is not transferable to any other person or company without written approval from DIPNR and does not allow operations at any other site. G. Any Part 3A permit granted does not give the holder the right to occupy any land without the consent from the owner(s), nor does it relieve the Part 3A permit holder of any obligation which may exist to also obtain permission from local government and other authorities who may have some form of control over the Site of the work and/or the activities proposed to be undertaken. H. A "person" for the purposes of these General Terns of Approval (GTAs), means a person, persons or organisation authorized by the recipient of the consent for the DA, or their agent, should such consent be issued, to undertake any of the requirements of these GTAs. I. These GTAs are issued with the proviso that operations shall be carried out on freehold land. Should operations be on Crown Land, any Part 3A pen-nit is rendered invalid for such Crown Land and has no force or effect on the same, and the occupier of Crown Land should contact the Department of Lands and Rural Affairs for their requirements. 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.