Land and Environment Court of New South Wales CITATION : S J Connelly Pty Ltd v Clarence Valley Council [2009] NSWLEC 1129 APPLICANT S J Connelly Pty Ltd PARTIES : RESPONDENT Clarence Valley Council FILE NUMBER(S) : 10063 of 2009 CORAM: Murrell C KEY ISSUES: CONSENT ORDERS - SECTION 96 MODIFICATION :- LEGISLATION CITED: Northern Rivers Local Government Development Design and Construction Manual DATES OF HEARING: 22 April 2009 EX TEMPORE JUDGMENT DATE : 23 April 2009 APPLICANT Mr Stephen Connelly, Litigant in Person LEGAL REPRESENTATIVES: RESPONDENT Mr David Pickering, Solicitor of Pickering Priestley Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 23 April 2009 10063 of 2009 S J Connelly Pty Ltd -v- Clarence Valley Council JUDGMENT 1 COMMISSIONER: The applicant in these proceedings submitted a s96 application to the Council seeking a modification to the conditions of consent granted by the Council to a development application for a canal development of 269 lots in what is known as Yamba Quays. 2 The parties have come here today with consent orders agreeing to the deletion of condition 33 of development consent number 1973/92 and an amendment to condition 15. There are no objectors to the proposed modification and I see no reason as to why the Court should not agree to the consent orders. 3 Since development consent was granted to the subdivision over 100 lots have been registered and the canals and associated revetment walls have been completely constructed. The applicant contends that given that the site is now in a physical state requiring minimal further work in terms of infrastructure condition 33 is unnecessary and Council agrees that it can be deleted from the development consent. 4 In relation to condition 15 it is intended to amend this condition to require all cul-de-sacs to be constructed to a width not less than 15 min whereas the condition currently is 15.24 m. The modification of 15 m is consistent with the road width provided in the estate to date and of exceeds the minimum width of 14 m in the Northern Rivers Local Government Development Design and Construction Manual. 5 Condition 33 read "consent to development application number 73/92 to be 20 years from the date of approval within which period all lots will be completed and released. The deletion of condition 33 is to remove the restriction that all lots are to be completed and released by 10 June 2117. The applicant states that it is unrealistic that market demand for the remaining 140 lots will result in their release by 10 June 2117. 6 I am satisfied that there is no reason as to why the Court should not agree to the Consent Orders sought by the parties. 7 Accordingly the formal orders of the Court by consent are: 1. The s.96(6) appeal for Yamba Quays is upheld. 2. The s.96 modification application submitted to Clarence Valley Council is approved and the consolidated conditions of consent, as modified, are contained in Annexure 'A'. 3. The Court notes each party is to pay its own costs. ___________________ Jan Murrell Commissioner of the Court ajl Annexure "A" Consolidated Conditions of Consent as of 23 April 2009 'Yamba Quays Estate' Property Address: Taine Court YAMBA NSW 2464 Legal Description: Lot 91 DP 1069070 THE DEVELOPMENT SHALL COMPLY WITH THE PLANS LODGED WITH THE APPLICATION AND AS MAY BE AMENDED BY THE FOLLOWING CONDITIONS OF CONSENT AND/OR BY AMENDED PLANS AND DETAILS. Conditions of Consent 1. The development shall generally comply with the plans lodged with the Council as modified by Plan 3 (dated December 2006), the section 96 Report prepared by SJ Connelly Pty Limited, Flora and Fauna Assessment prepared James Warren & Associates as approved by Council 17 April 2007 and as may be amended by the following conditions of consent and/or by amended plans and details. (Amended 24 April 2004) 2. The final plan for the subdivision is to be satisfactory to and approved by the Public Works Department, the Public Health Department, the Chief Secretary's Department (Fisheries) and the Council. A copy should be submitted to the Authority. 3. No dwelling house or commercial building is to be erected before the revetment along the foreshores is constructed nor before sewerage is completed and can be provided. 4. The development is to be connected to all available services (water, sewerage, electricity and telephone) upon completion. Such connections, and any extension of services required to the development, are to be carried out at full cost to the developer/applicant. For sewerage and water connections refer to Appendices A and B of this development notice. 5. The earth filling and building up of all lots to a level of 2.4 metres above Australian Height Datum is to be in accordance with Council's 'Engineering Specification for Development'. 6. The developer shall be responsible for the construction of a roundabout at the intersection of Illawong Drive and Yamba Road and also responsible for the construction of a roundabout at the intersection of Gumnut Road and Witonga Drive. Approval under the Roads Act to be obtained from the RTA for the former, and details of the latter to be submitted to Council for approval. (Amended 24 April 2004) 7. The minimum area of each allotment from the top of the canal bank to the road boundary shall be 465m2 as laid down in Council's minimum Standards (August 1971). This would mean deeper blocks than shown, depending on the frontage. 8. Council has agreed for the canal areas to be shown as lot on the final linen plan and transferred to Council in fee simple. 9. Streets servicing lots 58 to 33, 95 to 62, 113 to 103 and 201 to 225 be increased to18.29 metres wide. 10. Necessary drainage easements be shown on final plans. 11. Lot 77 and 27 are increased in frontage to 24.38 metres along Witonga Drive. 12. Deleted (Deleted 24 April 2004) 13. Illawong Drive from Lot 226 to Lot 140 is to be not less than 18.29 metres wide. 14. Witonga Drive (previously Mawarra Drive) from Lot 16 to Lot 20 is to be not less than 15.24 metres wide. 15. All other cul-de-sacs are not to be less than 15.24 15 metres wide and turn rounds are to be not less than 15.24 15 metres radius. (Amended by Council 11 November 2008) 16. All roads, streets, parks, reserves, easements etc. shown in the plan are to be dedicated to Council. 17. All internal streets shown are to be constructed in concrete kerb and gutter with ancillary drainage structures and bitumen sealed gutter to gutter all to Council's specification. 18. Witonga Drive from Lots 27 to 16 to be constructed in bitumen to at least half width of the road reserve. 19. One suitable and approved street tree adequately protected and maintained for a period of 3 months is to be provided for each lot in positions approved by the Shire Engineer. 20. All service utilities such as water reticulation, sewerage reticulation, electricity mains, storm water drains, are to be constructed prior to the construction of kerb and gutter and bitumen pavements. 21. Plans for registration with the Registrar General will not be signed until a certificate is issued by Council's Engineer that all works have been completed satisfactory. 22. Mean High Water Mark is acceptable for property boundaries. A restriction-as-to-user requiring owners to maintain the revetment wall TO Council's satisfaction will be required. 23. The open space reserve at the end of canals between Nabilla Court and Barellan Avenue is to be retained. This includes the public reserve shown as Lot 216 on the original plan (now lot 31) on the corner of Nabilla Court and Witonga Drive. The proposed reserves on the corner of Nabilla Court and Witonga Drive, and also Taine Court and Amaroo Place (previously Tarook Avenue) may be deleted. This would provide a net product of two reserves along the length of Witonga Drive, both of which provide a visual vista along the length of canals which is very desirable in the overall subdivision. (Amended 24 April 2004) 24. Council agrees that it will re-refer the subdivision to the Lands Department, Fisheries and Public Works, as discussed with you. 25. Oyster Channel armouring should proceed to the extent as to be approved by the Shire Engineer. 26. The deletion of the end battle-axe residential allotment off Witonga Drive (now the reserve allotment No. 20) for the redesigned carpark and boat ramp as per the attaced sketch plans "C" and "D". 27. Earthworks and revetments are to be completed approximately to final levels (typically + 600mm) within 4 years of the date of consent of this amendment – 10 June 1997. (Deleted by Council 11 April 2007) 28. No open space contribution is payable for the remainder of Stage 1, in lieu of which the developer will upgrade and dedicate to Council those open space reserves indicated on the approved plan of subdivision. A plan of works for each reserve to be submitted for Council's approval. 29. Community Facilities contributions for the balance of Stage 1 (at $500/lot) are to be discounted by the previous $10,000 ex-gratia payment by the developer towards the cost of the Witonga Drive boat ramp. As at 14 May 19997, approximately 54 lots remain within Stage 1. 30. Payment to Council of all Section 64 contributions, including sewer headworks current at the time of release of the linen plan for all lots (including all unreleased lots in Stage 1). 31. Payment to Council for all lots in Stages 2 –8, of all Section 94 contributions applicable at the time of linen plan releases, at the rate applicable at those times. This includes the Yamba urban Area Bypass Contribution. 32. All bulk earthworks and dredging are to be carried out in accordance with accepted environmental practice current at the time of works, details are to be submitted with engineering plans, for Council's approval prior to the commencement of any work. 33. Consent to Development Application No. 73/92 to be extended for 20 years from the date of approval of this S102 amendment by Council (10th June 1997), within which period all lots will be completed and released. (Amended 10 June 1997; Deleted by Consent Order 23 April 2009) 34. The developer shall meet the cost of widening to full width, kerbing and guttering and drainage work to the lake in Witonga Drive. (Inserted 24 April 2004) 35. The proponent shall meet the costs of Council carrying out the embellishment of Kolora Lake Reserve, generally shown in Plan 4 to the Section 96 amendment application up to a maximum expenditure of $131,000 plus provision of a footpath from the Reserve to Yamba Fair Shopping Centre along the northern side of Yamba Road. (Inserted 24 April 2004) 36. The applicant shall enter into a Planning Agreement or other legally binding arrangement with Council for the amount of $210,000 that will be directed toward the provision of sporting facilities within the community of Yamba. (Inserted by Council 11 April 2007) 37. No additional fill shall be transported to the site until the completion of the roundabout at the intersection of Yamba Road and Illawong Drive. (Inserted by Council 11 April 2007) 38. Prior to the transportation of land fill the applicant shall provide details on where the fill is sourced from, which is to be from a registered quarry and nominate all traffic routes from the registered to quarry. (Inserted by Council 11 April 2007) 39. The applicant shall gain written advice from the Department of Environment and Climate Change for any approval or license that maybe required prior to undertaking subdivision works. The written advice from the Department of Environment and Climate Change shall be submitted to Council prior to the commencement of works. (Inserted by Council 11 April 2007) ________________________ Jan Murrell Commissioner of the Court Appendices below to Development Application No. 1973/92 being a reference to S.68 of the Local Government Act 1993 (conditions for levying of sewer costs and constructing sewerage works as per Condition No. 4) APPENDIX A CONDITIONS REQUIRED FOR APPROVAL UNDER SECTION 68 OF THE LOCAL GOVERNMENT ACT FOR WATER RETICULATION BEING NEW WORKS, UPGRADINGS OR AUGMENTATION WATER 1. The obtaining from North Coast Water of a Certificate stating that the development complies with their requirements under Division 2 of Part 3 of the Water Supply Authorities Act, 1987 in regard to water works and; 2. The construction of water works is a condition of consent for the subject development. All water works to serve the development are to be in accordance with the specifications of the Director of Technical Services; and 3. A payment to North Coast Water will be required towards the cost of existing and projected works which will be of a benefit to the Development. The contribution shall be made at the time specified by Director of Technical Services. In the event of any subsequent amendment to the approved plans the above contribution may vary and if so will become the amount required. APPENDIX B CONDITIONS REQUIRED FOR APPROVAL UNDER SECTION 68 OF THE LOCAL GOVERNMENT ACT FOR SEWER RETICULATION BEING NEW WORKS, UPGRADINGS OR AUGMENTATION SEWERAGE 1. The obtaining from Council of a Certificate stating that the Development complies with Council's requirements under Division 2 of Part 3 of the Water Supply Authorities Act, 1987 in regard to Sewerage works; and 2. The construction of sewerage works is a condition of consent for the subject development. All sewerage works necessary to serve the Development are to be in accordance with Council's Engineering Specification for Development; being Chapter 13 Design and Construction – Sewerage; and 3. The payment to Council of $3,422.00 per lot towards the cost of existing and projected works which will be of benefit to the Development. The contribution (as assessed) will hold until the 31 December 2004. Contributions not received by that date will be adjusted in accordance with the adopted Schedule of Fees and Charges current at the time of payment. Payment shall be made prior to release of the Linen Plan. In the event of any subsequent amendment to the approved Plans, the above calculated contribution amount may vary, and if so, will become the contribution payable. 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.