Land and Environment Court New South Wales Medium Neutral Citation: Treysten Pty Limited v Hornsby Shire Council [2011] NSWLEC 1364 Hearing dates: 27-28 October 2011 Decision date: 23 November 2011 Jurisdiction: Class 1 Before: Morris C Adam AC Decision: The applicant is to provide the servicing details to the council and the Court by 2 December 2011 and the council is to finalise consent conditions which reflect the terms of this judgment by 9 December 2011. Final orders will be made in Chambers. Catchwords: DEVELOPMENT APPLICATION - Senior Living; Site compatibility statement; whether land adjoins land zoned for urban purposes; whether proposal is consistent with the character of the area; whether development is permissible on the land; whether adequate provision has been made for the servicing of the site with sewer and water connections available Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy - Housing for Seniors or People with a Disability 2004 State Environmental Planning Policy (Major Development) 2005 Threatened Species Conservation Act 1995 Water Industry Competition Act 2006 Hornsby Local Environmental Plan 1994 Cases Cited: Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181 Modog Pty Ltd v Baulkham Hills Shire Council [2000] NSWLEC 180 ACN 115 840 509 Pty Limited v Kiama Municipal Council [2006] NSWLEC 151 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399 Crighton Properties Pty Limited v Kiama Municipal Council [2006] Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 Segal & Anor v Waverley Council [2004] NSWLEC 363 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Hurstville v Goreski [2011] NSWLEC 188 Category: Principal judgment Parties: Treysten Pty Limited (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel Mr P Tomasetti SC (Applicant) Solicitors Whittens Lawyers and Consultants (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10677 of 2011 Judgment 1This is an appeal against the refusal by the Sydney West Region Joint Regional Planning Panel (JRPP) of Development Application No 484/2011 (the application) lodged with Hornsby Shire Council (the council) that proposed the construction of a Seniors Living Development containing seventy six (76) independent living units and a community centre at No 392 Galston Road and No 5 Mid Dural Road, Galston (the site). 2The main issues in contention are the permissibility of the use, whether the site is suitable for the development and adequately serviced and whether the development is consistent with the character of the area. The site and its context 3The site is an L-shaped parcel comprising two allotments. The northern parcel, known as No 5 Mid Dural Road comprises Lot C in DP 38865. That allotment has a frontage of 132.36 m and site area of 2.023 ha. The southern parcel, No 392 Galston Road (Lot 1 DP 654433) is located on the western side of the roadway. Lot 1 has an irregular frontage to that road of approximately 100m and runs to the south of Lot C with its rear boundary coinciding with the western boundary of Lot C. Area of Lot 1 is 1.982ha. Total area of the site is 4.005ha. 4Lot C contains a dwelling house, shed and a large greenhouse. A dwelling house, shed and detached garage are located on Lot 1 and that lot also contains a number of peach trees, having previously been used as an orchard and a row of Eucalyptus microcorys (Tallowwood) adjacent to the southern boundary running from Galston Road to the approximate midpoint of the site. Other introduced species are located within the front setback of this lot. 5On the Mid Dural Road boundary of Lot C is a small area of remnant Sydney Turpentine Ironbark Forest (STIF), which is identified as an Endangered Ecological Community under the Threatened Species Conservation Act 1995. 6Rural properties adjoin the site to the south, east and west. These are used for a variety of purposes including market gardens, horticulture, nurseries and orchards as well as large lot residential use. Galston Recreation Reserve is located to the south-west of the site and is a heavily vegetated area intersected by Colah Creek. 7The southern extent of the Galston urban area is on the opposite side of Mid Dural Road from the site. This urban area contains a mix of single and two storey detached dwellings and is serviced by a small retail complex at the corner of Arcadia and Galston Roads, approximately 500 m from the site and community facilities further to the north along Arcadia Road that include a community health centre, club and preschool. There are some multi-unit housing developments in the vicinity of the local centre. 8The site is not connected to sewerage infrastructure and potable water supply is limited. Background and the proposal 9The application was lodged with the council on 16 May 2011 and was accompanied by a site compatibility statement issued by the Director General of the Department of Planning on 17 September 2010 pursuant to Part 1A of State Environmental Planning Policy - Housing for Seniors or People with a Disability 2004 (SEPP 2004). That certificate applies to Lots C and 1 and is valid in relation to development specified in Schedule 2 of the certificate. That schedule describes the project as: * 94 self contained units (serviced self care housing) of single storey construction. * On site services including meals, cleaning, personal and medical care and nursing. * A community facility. 10A number of requirements are imposed on the determination to issue the certificate. They are: (1)Development consisting of one storey as proposed (2)Compliance with at least the standards in clause 50 (b), (c), (d) and (e) of SEPP 2004 covering density and scale, landscaped area, deep soil zones, and solar access. (3)Private open space is to be provided for each dwelling at least to the standard of clause 50(f) of SEPP 2004. (4)Council being satisfied that the development will be a retirement village, as required by clause 17(2) of SEPP 2004. Management mechanisms for the services to be provided are to be to the satisfaction of Hornsby Council. (5)The final number of dwellings (not to exceed 94) to be determined taking into account the requirements of (sic) by the Council taking into account council's Development Control Plan and other formal policies, such as setbacks to boundaries, on site effluent disposal, drainage and the like, and the open space and landscaping requirements of SEPP 2004. (6)Siting of dwellings to maximise accessibility to services in Galston village and to public transport. (7)Negotiation with HillBus before submission of a development application of the provision of a bus stop to service the proposed development. (8)Demonstration of adequate infrastructure for, or treatment of, wastewater and siting of any on-site treatment to the rear of the site, including further discussions with Sydney Water re the availability of reticulated sewer. (9)A buffer/setback to be provided from all boundaries in accordance with Council's Rural Lands Development Control Plan. (10)The size of the community facility to be a minimum of 300 sq m and include common dining and recreational areas. (11)Any development application should consider potential contamination issues as the result of previous uses on the site 11The proposal is for the demolition of all existing buildings and the construction of a Seniors Living development comprising 76 self-contained dwellings, a community centre and wastewater management facility. All dwellings are single storey, two bedroom dwellings with single car garage and 25 also include a study. There are 13 floor plans proposed with areas ranging from 92 to 104sqm. Whilst not specified in the application, the Court was advised that the application is for "service self-care housing" as defined in SEPP 2004. 12The site is planned around a central accessway with access proposed from both Mid Dural and Galston Roads. Access is restricted to left in/left out. Cluster housing formations off secondary access roads in groups of seven to nine dwellings and a range of detached and duplex dwellings fronting the main access road are proposed. The community centre is centrally located and provides a recreation room, dining area, service room, kitchen, store, switch meter room and toilet facilities internally and an outdoor seating verandah space. 13The remnant forest is to be retained and site landscaping incorporates intense perimeter plantings to provide a buffer to the adjoining rural properties. 14Slip lanes, medians and a bus stop would be constructed within the road reserve adjacent to each entry driveway. Pathway connections are proposed from the site and link to the road crossing where pedestrian refuges would be built within each road to link the site to proposed new bus stops and existing footpaths that connect to the Galston Village. 15The application was notified on two occasions, the second occasion to address an error in the property description provided in the notice. A total of 28 submissions were received in response to the exhibitions. 16As the capital investment value of the application exceeds $10million, the council referred the application to the JRPP for determination in accordance with the provisions of State Environmental Planning Policy (Major Development) 2005 as it applied at the time the application was lodged. The briefing paper prepared by the council recommended the application be refused for the same reasons that an earlier application, said to be very much the same as the current application however, not with the benefit of a site compatibility statement, was refused by the JRPP on 20 December 2010. 17The JRPP determined the application on 15 September 2011 and unanimously resolved to refuse consent based on the assessment in the council's planning report and particularly for the following reasons: (1)The Panel agrees with the council report that the site is not suitable for this development having regard to council's Strategic Housing Strategy which seeks to limit urban growth in Galston Village and provide more appropriate locations for seniors housing on sites that are sewered and with better access to public transport services. (2)There is inadequate infrastructure as there is no reticulated sewer available to the site and the Panel believes this is fatal to this application. It is noted that there is no firm date for any sewerage connection. (3)The Panel does not agree that the site is within a safe and convenient distance to Galston Village as there is necessity to cross two heavily trafficked roads. The Panel does not find that Galston Village has the full range of specialist services necessary for seniors and is not convinced that public transport will be available at relevant times. (4)The size, density and location of the proposed development relative to the context of the rural setting will adversely impact on the rural village character of Galston Village. (5)Approval of this application is likely to be a precedent for similar inappropriate development. The planning controls 18The site is zoned Rural BA (Small Holdings - Agricultural Landscapes) under Hornsby Local Environmental Plan 1994 (the LEP). The objectives of the zone are: (a) to restrain population growth, maintain the rural character of the area and ensure that existing or potentially productive agricultural land is preserved. (b) to promote agricultural use of land and provide for a range of compatible land uses which maintain the agricultural and rural environment of the area. (c) to ensure development is carried out in a manner that improves the environmental qualities, and is within the servicing capacity, of the area. 19Residential development, other than for the purpose of a dwelling-house is prohibited in the zone. 20The application is made under SEPP 2004 which permits housing for "seniors living" on land adjoining land zoned primarily for urban purposes (cl 4(1) and (4) where certain forms of development are permitted with consent, in this case, dwelling houses and includes provisions that the policy applies in the event of an inconsistency with any other environmental planning instrument (cl 5(3). 21Relevant definitions of self-contained dwelling and s erviced self-care housing are provided in cl 13 as follows: a self-contained dwelling is a dwelling or part of a building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in the dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis. serviced self-care housing is seniors housing that consists of self-contained dwellings where the following services are available on the site: meals, cleaning services, personal care, nursing care. 22Clause 17 of SEPP 2004 applies to development on land adjoining land zoned primarily for urban purposes and provides that consent can be granted to development on such land for the purposes of a hostel, residential care facility or serviced self-care housing provided other relevant provisions within the policy are met. In the case of the latter, the consent authority must be satisfied that the housing will be provided for people with a disability or in combination with a residential care facility or as a retirement village (within the meaning of the Retirement Villages Act 1999 ). 23Part 1A of SEPP 2004 introduces a requirement that a site compatibility certificate is obtained where the development is proposed on land that adjoins land for urban purposes and that development is not permitted with consent. In determining whether consent should be granted, cl 24(2) requires: (2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the Director-General has certified in a current site compatibility certificate that, in the Director-General's opinion: (a) the site of the proposed development is suitable for more intensive development, and (b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25 (5) (b). 24Clause 24(3) states: (3) Nothing in this clause: (a) prevents a consent authority from: (i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or (ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or (b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies. 25At the time the application was lodged, cl 24(3)(a)(ii) had been repealed, however it was reinstated on 29 July 2011 and, in accordance with the savings and transitional provisions contained in cl 54, the subclause applies to applications made but not determined. Accordingly, it is open to the Court to refuse the application in the event that it determines that the proposed development is not compatible with the surrounding environment despite the site compatibility certificate having been issued for the application. Clause 25(5)(b) provides guidance of those matters which must be considered by the Director-General in determining whether the proposed development is compatible with the surrounding land uses. They include, but are not limited to the following: (i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development, (ii) the impact that the proposed development is likely to have on the uses that, in the opinion of the Director-General, are likely to be the future uses of that land, (iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision, (iv) in the case of applications in relation to land that is zoned open space or special uses-the impact that the proposed development is likely to have on the provision of land for open space and special uses in the vicinity of the development, (v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development, (vi) if the development may involve the clearing of native vegetation that is subject to the requirements of section 12 of the Native Vegetation Act 2003 -the impact that the proposed development is likely to have on the conservation and management of native vegetation. 26Clause 26 of SEPP 2004 requires: (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to: (a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. Subclause (2) establishes how an application can comply with these access requirements. 27Clause 28 relates to water and sewer as follows: (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage. (2) If the water and sewerage services referred to in subclause (1) will be provided by a person other than the consent authority, the consent authority must consider the suitability of the site with regard to the availability of reticulated water and sewerage infrastructure. In locations where reticulated services cannot be made available, the consent authority must satisfy all relevant regulators that the provision of water and sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development. 28Part 5 of SEPP 2004 is specific to development on land adjoining land zoned primarily for urban purposes to be used for serviced self-care housing. Clauses 42-44 state: 42 (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to: (a) home delivered meals, and (b) personal care and home nursing, and (c) assistance with housework. (2) For the purposes of subclause (1), residents of a proposed development do not have reasonable access to the services referred to in subclause (1) if those services will be limited to services provided to residents under Government provided or funded community based care programs (such as the Home and Community Care Program administered by the Commonwealth and the State and the Community Aged Care and Extended Aged Care at Home programs administered by the Commonwealth). 43 (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development: (a) that will drop off and pick up passengers at a local centre that provides residents with access to the following: (i) shops, bank service providers and other retail and commercial services that residents may reasonably require, (ii) community services and recreation facilities, (iii) the practice of a general medical practitioner, and (b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day. (2) Subclause (1) does not apply to a development application to carry out development for the purposes of the accommodation of people with dementia. (3) In this clause, bank service provider has the same meaning as in clause 26. 44 A consent authority must be satisfied that any facility or service provided as a part of a proposed development to be carried out on land that adjoins land zoned primarily for urban purposes will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage. 29SEPP 2004 also includes a number of development standards that, if met, cannot be used as reasons to refuse an application and a number of design standards. The issues 30The issues in the case are whether the application * is prohibited on the land pursuant to the provisions of the LEP and SEPP 2004, in particular whether the site is land that adjoins land zoned for urban purposes; * is compatible with the surrounding environment and land uses and consistent with the rural character; * has access to necessary services, particularly water and sewer * is in the public interest. The evidence 31The hearing commenced on site with a view taken of the site, adjoining properties and the locality including the Galston Village. 32Objector evidence was heard from seven local residents including representatives of four community groups. The issues raised in those submissions is summarised as follows: * concerns regarding stormwater and flooding of downstream properties; * adequacy of wastewater management system, concerns regarding overflows and odour; * impacts from agricultural pursuits, particularly spraying of fruit trees, on residents; * traffic and pedestrian safety; * environmental impacts, particularly on waterways; * loss and isolation of agricultural land; * adequacy of and access to necessary services including hospitals and specialist medical services; * adequacy of electricity supply to service the development; 33Expert evidence was heard from the following: Applicant Council Mr N Juradowitch Mr G Mahony (planning) Dr Martens Mr R Spencer (water and waste management) Mr Lakeman (landscape architect) Mr Juradowich, Mr Mahony and Professor P Webber (urban design) also participated in a joint conference and provided a joint report in relation to the rural setting and landscape. Professor Webber did not provide further evidence to the Court. Whether the site adjoins land zoned for urban purposes. 34There is no dispute between the parties that the Galston Village is land that is zoned for urban purposes and that the road that separates the site from that village (Mid Dural Road) is not relevant in determining whether the site adjoins that village. It is agreed that Lot C (No 5 Mid-Dural Road) adjoins land that is zoned urban. However the town planning experts held opposing views as to whether the remainder of the site, i.e. Lot 1 (No 392 Galston Road) was land that adjoined land zoned for urban purposes. 35Mr Juradowitch says that the site comprises two contiguous lots and as the northern portion is opposite the village, it adjoins land zoned for urban purposes. He says that the fact that the land comprises two land titles or allotments is not material and that the site should be considered as one parcel. He cited the decision in Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181 wherein it was determined that it is not necessary that the whole of the site adjoin land zoned for urban purposes. He also said that if the site was not land to which SEPP 2004 applied, the Director General of the Deparment of Planning would not have able to issue the Site Compatibility Certificate. 36Mr Mahony says that the size and scale of the development is disproportionate to the extent of the site that adjoins the urban zone, that the adjoining urban zone is deficient in services and concludes that only one of the lots adjoins that urban zone. Accordingly, he concludes that SEPP 2004 does not apply and that the development would be prohibited on the site pursuant to the provisions of the LEP. 37Mr Seton, for the council, submits that the whole of the land must adjoin land zoned for urban purposes. He says that No 392 Galston Road is surrounded by land zoned rural and is some 450 m from the village zone. He says that determining whether the site is land that adjoins land zoned for urban purposes is a matter of fact and degree and refers to the decision of Pearlman J in Modog Pty Ltd v Baulkham Hills Shire Council [2000] NSWLEC 180, where her Honour, at [24] found: In my opinion, however, the agreed facts are sufficient because they establish the zoning of the surrounding land, which is the critical inquiry. The question to be asked does not focus on the uses to which the surrounding land is put; it is, rather, whether the surrounding land is zoned primarily for urban purposes. The critical matter is zoning rather than actual use. The facts are that the land which surrounds the site on every side is zoned Rural 1(c), taking into account that the frontage of the site is separated from Rural 1(c) land only by a road. For the reasons I have already set out, land which is zoned Rural 1(c) is not land which is zoned primarily for urban purposes. I note that there is land which is zoned General Business 3(a) and Residential 2(a) (which, for present purposes, I take to be land zoned primarily for urban purposes) but that land is located over 200 m beyond the site, and it is separated from the site by land which is zoned Rural 1(c). Therefore, it cannot be said, in my opinion, that the site is near to or in the neighbourhood of land zoned primarily for urban purposes. I conclude, therefore, that the site does not adjoin land zoned primarily for urban purposes. 38Mr Tomasetti, for the applicant, relies on the decision in Good Samaritan and in particular where it references the decision of Preston CJ in ACN 115 840 509 Pty Limited v Kiama Municipal Council [2006] NSWLEC 151, where his Honour said, at [31] to [33]: 31 These cases of the Court of Appeal and this Court are consistent in holding that it is not necessary, in order for the subject land to answer the description of being land that "adjoins" land zoned primarily for urban purposes, to be conterminous with (that is, have a common boundary with) or be immediately adjoining the 2(a) Residential land. It is sufficient that the subject land is "near to" or is "neighbouring on" or is "in sufficient proximity to" the 2(a) Residential land which is land zoned primarily for urban purposes. 32 The determination of whether land answers the description of being land that "adjoins" within this meaning involves matters of fact and degree. 33 In my opinion, the facts of the present case do establish that the subject land is near to or neighbouring on or in sufficiently close proximity to land zoned primarily for urban purposes. My reasons accord with and I adopt the reasons given by the applicant, set out in paragraph 9 above. Findings 39We do not consider that the lot boundary in any way provides a barrier to the site being land that adjoins land zoned for urban purposes. Whilst it is acknowledged that a portion of the site is separated from the Galston Village by properties to the north of the site fronting Galston Road that are zoned rural, the fact is that the whole of the land is a contiguous parcel of land and that parcel of land adjoins the Galston Village. The size of the land to which the application relates is not such that it is, at any point, so far from the village that as a matter of fact or degree, it could not be considered to adjoing that village. The separation by Mid Dural Road is not a factor that is to be taken into account pursuant to cl 4(4) of SEPP 2004. Accordingly, we find that the site is land that adjoins land zoned for urban purposes and that the provisions of SEPP 2004 apply. Compatibility 40SEPP 2004 requires the Court to determine whether the proposed development is compatible with the surrounding land uses and environment. 41The three planning/urban design experts, with regard to rural setting and landscape, agree, that subject to the successful establishment of appropriate landscaping and boundary screen planting, the proposal would not result in a significant visual impact within the surrounding rural landscape and therefore, would not have an unreasonable impact on the existing rural setting and landscape. 42Mr Lakeman provided advice in relation to the likely time that the plantings proposed would mature to a state that they would screen the development, particularly once weed species were removed. It was agreed during the hearing that more advance trees and shrubs be planted to improve the screen effect. Appropriate consent conditions to address this requirement and the management of the STIF are discussed at the end of this judgment. 43Dr Webber says that the new dwellings, that have a combination of pitched and flat roofs, that are sited low to the ground and have varied external finishes ensure the development would complement the nature of the surrounding and nearby landscape. When viewed from Mid-Dural Road, he says that there would only be a glimpse of buildings available to passers-by and from Galston Road, the deep landscaped setback with the proposed new 'cultural' and native trees are proposed to stand above a field-grass floor allowing the front two dwellings to be just perceived from the road and that this is consistent with how existing dwellings nearby and along the frontage can be seen. 44Mr Mahony says that approval of the development would increase the urban area defined as the Galston Village by 7% at a density of 19.2 dwellings per hectare (including roads) which, it is agreed between the experts, exceeds the density of development within the Galston Village, which is 10-12 dwellings per hectare excluding public roads. He says that the site is surrounded by rural land and that the proposed development would raise issues of compatibility with the uses permissible within that zone and that those sites are suited, due to proximity to the Sydney markets, for value added produce such as organics and hydroponic cultivation. 45Mr Seton, for the council, submits that the test of compatibility includes those matters listed in cl 25(5) of the SEPP and that is that the proposed development must be compatible with the surrounding land uses having regard to the natural environment, including significant resources, the existing uses and approved uses of land within the vicinity of the site. In addition, the likely future uses of that land must be considered. He submits that the site is categorised as partly class 2 and partly class 3 agricultural lands and that the development would isolate adjoining land from agricultural use or any other use permitted within the rural zone which are consistent with the aims and objectives of the zone. 46Mr Juradowitch says that the density of the proposed development complies with the density limits prescribed in the issued Site Compatibility Certificate and is commensurate with typical low density suburban residential densities and considers that SEPP 2004 envisages seniors housing on rural land at higher densities than is evident on existing rural land. He says that agricultural activities have declined in the locality over the last 10-20 years with many former small farms now only used for rural-residential purposes and that rural activities have been carried out without significant land use conflicts despite the proximity of those activities to existing dwellings. He says that the proposed building setbacks comply with the council's requirements for rural dwellings and are sufficient to provide an adequate buffer to the typical farming activities carried out in the locality such as orcharding. 47Mr Tomasetti submits that the proposal is compatible in terms of its ability to exist in harmony with the urban fringe/rural landscape and that it is responsive to its surrounds in terms of building height, setbacks, landscape, architectural style and materials. Findings 48The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides guidance in the assessment of compatibility. Relevant considerations are: 22 There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of existing together in harmony . Compatibility is thus different from sameness . It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?....... 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character........ 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials. 49We are satisfied from the evidence provided that the setbacks incorporated in the design of the development accord to those required under the DCP and accordingly, are satisfactory to minimise any land use conflicts that may arise to current and future land uses in the vicinity of the site. We note the agreement between all experts that the landscaping proposed around the perimeter of the site, once established, will screen the development from adjoining properties and Mid Dural Road and not have a significant visual impact within the surrounding rural landscape or its setting. The fact that a development is not visible or only partially visible is not however an appropriate test of compatibility. We accept the evidence that the proposed landscaping is consistent with the character of the area. 50We accept Dr Webber's uncontested evidence that the built form is consistent with existing dwellings and note that the matter of density and scale is one of those development standards listed in cl 50 of SEPP 2004. Provided the density of the development does not exceed a floor space ratio (FSR) of 0.5:1, that standard cannot be used as grounds to refuse an application. The experts agree that the FSR proposed is approximately 0.2:1. It is particularly important to note that the entire development is single storey and the scale of those buildings is consistent to that of a dwelling house despite the fact that the majority of those dwellings are attached. They have been designed in clusters with landscaped areas separating them so as to reduce the bulk and scale. Of particular importance is the setbacks provided which accord to those required by the DCP for rural forms of development. 51The SEPP envisages that the proposal will be different to the rural area however, it does not have to be the same. The evidence provided allows us to conclude that the proposed development is compatible with the surrounding environment and that such a determination is consistent with the determination of the Director General through the issue of a Site Compatibility Statement. Access to Services Water 52SEPP 2004 requires the housing must be connected to a reticulated water system. The evidence provided is that Sydney Water, in correspondence dated 28 July 2010, confirms that reticulated water is available to the site with a maximum water supply rate of 0.5 litres per second. The experts agree that this rate is inadequate for peak demands and for fire fighting purposes and accordingly, it would be necessary to construct a site reservoir and booster pump system to meet those needs. An area has been delineated on the plans for the proposed tanks and that area is in the south-western corner of the site. However precise details of the size of the tanks has not been determined and would be the subject of future approvals and may also require a licence from Sydney Water. In the event that consent is granted to the application, appropriate conditions of consent would be required to address those requirements. 53Mr Seton submits that because the reticulated water supply is not provided directly to each individual dwelling but rather runs from the main, through a tank and then to the dwelling that the requirements of cl 28(1) are not met. Findings 54We accept the advice of the experts that a reticulated water supply is available to the housing that is proposed in the application. The fact that the provision of water is by way of a booster system in periods of peak demand does not, in our opinion, mean that the housing is not connected to a reticulated water supply. We distinguish housing as being the whole of the development as distinct to individual houses. However, if we are wrong on that distinction, we still form the view that the provisions of the clause are met. Sewer 55The Galston Village and the site does not have access to a reticulated sewer system and the area is not currently included in the list of areas identified as being on the Priority Sewerage Program under Sydney Water's Operating Licence 2010-2015. The purpose of the Program is to target urban areas that are serviced by poorly performing on-site wastewater systems such as septic tanks and pump-outs causing wider environmental impacts. 56The Court was provided extracts from correspondence from Sydney Water that suggest the Galston Village may be included in the Program. However, at the time of the hearing, the Operating Licence had not been amended. Accordingly, the timing of the Galston Village being connected to a sewerage system remains unknown. The experts agree that, in the absence of a sewer connection, an appropriate system could be designed for the site. Dr Martens had prepared a design for a wastewater pump-out system and it was agreed between the experts that this would conform to current standards for wastewater pump-out systems and that the pump-out costs would be approximately $2,000 per unit per annum and that equates to a premium of $1,600 above the rate charged by Sydney Water to sites serviced with a sewer connection. The estimated volume of waste water would require two trucks to collect waste every two days. 57Mr Spencer is of the opinion that, it adequately constructed, the proposed wastewater system for the site should not cause any odour impacts. However odours will be produced by the truck as gas is vented from the truck whilst pumping occurs. Dr Martens says that the proposed design adequately mitigates against any significant odour amenity impacts. 58With regard to noise, Mr Spencer says that there will be additional truck movements to the area to undertake the collection of wastewater. 59Mr Spencer says that pump-out systems are not sustainable and it is unclear whether the site would be connected if and when a sewerage system is provided to service the Galston Village. Whilst he acknowledges that sites within the village are too small to provide on site systems with water re-use, he says that this is not the case for the site and that other options are available to achieve sustainable water use and re-use which do not result in the high costs of pump-out. Dr Martens says that given the ubiquitous availability of pump-out services in the Galston area, the proposed system is a sustainable option and, whenever Galston is serviced by a reticulated sewerage scheme, the site would be connected to that system because there is ample time to include the site in any future planning, it is likely that any sewer line would be located on Galston Road and therefore front the site, it would be relatively easy to connect to sewer given the infrastructure proposed which would facilitate that connection and the site would provide a cost effective revenue stream for Sydney Water in that it would not have to build much infrastructure to bring the site on-line. 60The experts agree that the scheme may require licensing under the Water Industry Competition Act 2006 (WICA) and therefore recommend that any consent granted should be on the basis of deferred commencement conditions that require this licence to be granted prior to the consent becoming operative to ensure that the development as proposed can proceed. 61In relation to environmental concerns expressed by the residents, Dr Martens says that the only difference between the pump-out option and connection to a reticulated sewerage system is that the truck replaces the pipes which connect it to the sewage treatment plant. He says that Pump-out provides less risk to the environment, provided it is properly managed and collected and the risk of spillage is low and not likely to be more than one litre which would be cleaned up by the contractor if it occurred. He agreed bunding of the pump-connection would reduce the risk of overflows however says that this is not a usual requirement due to the low risk. 62Dr Martens was of the view that there is a need for an on-site manager at least 5 days per week to ensure the facility is functioning in a proper manner, that the system is alarmed to detect water levels reaching a critical point. He said there was little likelihood of environmental risk as the system had been designed to hold 6 days capacity and arrangements for collection would be two tankers every second day. His enquiries with the contractor that serviced the majority of sites within the Galston Village including the local high school indicated that the company would be able to provide this level of service so he concludes the system as proposed would be adequate for the site. Electricity failure would not be an issue as it would be possible for the tanker to utilise its pumps to pump the tanks should the on-site pumps be inoperable. 63Mr Seton submits that the Court cannot be satisfied that the design of the sewerage system satisfies the requirements of cl 28(2) of SEPP 2004. He says that because the sewerage service will be provided by a person other than the consent authority, consideration of the suitability of the site with regard to the availability of reticulated water and sewerage infrastructure is required. In addition, in locations where reticulated services cannot be made available, the consent authority must satisfy all relevant regulators that the provision of sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development. He says that there is no evidence before the Court that would assure the relevant regulator, in this case, IPART/Sydney Water, that the environmental and operational considerations are satisfactory. Findings 64We are satisfied that the conceptual sewerage system designed by Dr Martens, would be adequate to cater for the needs of the development, provided detailed design in regard to tank and pipe sizes and location takes into account the location of proposed buildings and existing trees and also facilitates the future connection to a reticulated service. Based on the evidence of Dr Martens and not contradicted by Mr Spencer, the pump-out system proposed, provided it is properly managed, would be operated in an appropriate manner so as not to cause any adverse environmental consequences. 65Whilst the Court accepts the costs of the pump-out would exceed those of connection to a reticulated system, those costs are, on the evidence provided, not unreasonable or so high that it would warrant refusal of the application. It is important to note that the design of the system requires minor modification to allow the site to be connected to a reticulated supply if and when it is provided to the Galston area. 66The wording of cl 28(2) is problematic as it requires that the consent authority must satisfy all relevant regulators that the provision of water and sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development. In this case, the relevant regulator is IPART/Sydney Water. Section 39 of the Land and Environment Court Act 1979 (the LEC Act) deals with the power of the Court on appeals. Subsection 2 is relevant and states: In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 67The issue of 'satisfaction' is addressed by Stein J in Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399 where, in reference to provisions contained in Byron Local Environmental Plan 1988 at 42-43 he states: 42 Applying the tests suggested in Drew, indeed in the other authorities cited therein, it is my opinion that the making of the arrangements is exclusively the province of the Council. The wording of the clause, utilising the past tense, and the nature of the arrangements itself is persuasive of this conclusion. 43 To summarise, there are two elements to cl 45. One is the making of the 'prior adequate arrangements' by the Council and the second is the 'satisfaction' with them prior to granting approval. The former is not 'in respect to the matter the subject of the appeal' and the latter is. Under s 39(2) the Court can substitute its satisfaction with cl 45 for that of the Council. 68On this basis, the Court can stand in the shoes of the council and satisfy Sydney Water that the sewerage infrastructure is satisfactory. However, it is unclear whether this extends to the need for the Court to prove to Sydney Water that this is the case or whether it is only necessary to be satisfied that the design of the system, including environmental and operational considerations, are satisfactory for the proposed development. In this regard, we are of the view that it is only necessary to determine that the pump-out arrangements as proposed are, based on the evidence of Dr Martens satisfactory in terms of environmental and operational requirements. Subject to bunding of pump connectors, we are satisfied that this is the case. We do not consider that the provisions of s 39 of the LEC empowers the Court to go beyond that point, nor would it be the Court's role to enter into any arrangements on behalf of the applicant. 69We are however satisfied on the evidence available that the preliminary design for the system is appropriate and that satisfactory arrangements have been made for the removal and disposal of sewage. 70We note that the proposed system would require Sydney Water licensing and approval prior to development of the site proceeding. Accordingly, the grant of the appropriate approvals and licences by Sydney Water must occur prior to any consent for the site becoming operative and this can be assured by way of deferred commencement provisions. Services 71There is no dispute between the parties that the site is located more than 400m from the Galston Village centre (some 500m) and that to comply with the provisions of cl 26 of SEPP 2004, a bus service must be available to residents that provides access to those facilities required to service residents. This accords with the provisions of cl 43(1) of SEPP 2004. In this regard, bus stops would be provided adjacent to the site in Mid-Dural Road which would access Glenorie and Castle Hill and on Galston Road to connect to the Galston Village and Castle Hill. It is agreed that the frequency of these bus services met the requirements of cll 26 and 43(1) of SEPP 2004 with regard to shops, banks and medical services. 72Whilst not an issue raised by the council in its contentions, the Court, after assessment of the evidence provided was not satisfied that the application had included sufficient details to satisfactorily demonstrate the full range of services required by cll 26 and 42-44 of SEPP2004 could be provided and made available to residents when the housing is available for occupation. The applicant was asked to provide further details to assist the Court in determining this aspect of the application. 73The application considered by the council provided information in response to enquiries made to a number of service providers which suggested that they would be able to provide a range of services to residents of the development, in particular meals, transport, personal care, home nursing and domestic assistance. No details as to how these services were to be provided, how they would be co-ordinated, who was responsible for managing the services, how the costs would be determined, where they would be provided and the frequency of provision had been included. The plans provided to the Court did not show any area delineated as a Manager's office or appear to designate any office area where a person who would be responsible for the provision of the necessary services would be based. Correspondence submitted to the council stated that there would not be any meals provided from the site and that the kitchen within the community centre would only include facilities such as a microwave to allow warming of foods brought to the building. 74In addition, a number of the services included by the applicant in its list of possible providers were provided by organisations funded under Government provided or community based care programs (e.g. Hornsby Meals on Wheels which is funded through the Home and Community Care Program). In accordance with the provisions of cl 42(2) of SEPP2004, this would not demonstrate that residents would have reasonable access to services. Other information provided ranged from details obtained from websites to letters and emails in response to specific enquiries. 75As the council had been satisfied with the list of possible providers included in the application, the issue of satisfactorily addressing the provision of services had not been included in the council's contentions. It was raised on day 1 of the hearing and the applicant requested to provide additional information, particularly with regard to the management of the services. 76An affidavit of Mr Csaba Kaposi, the project manager responsible for the application, was tendered as Exhibit D. That document included copies of the correspondence and website details that had been provided with the application and also the Planning Report that had been lodged with the Department of Planning when seeking the Site Compatibility Certificate. That document suggested that the application is to provide serviced self care housing based primarily on self contained dwellings with appropriate on site services being available if and when required. At this stage the details of the additional services available on site have not been finalised, however, a notional community building has been included in the concept plans, with this facility capable of enlargement and further detailing as part of any future Development application. Initial investigations have revealed a number of local and regional service providers would be able to serve the site and its residents. Additional information in regard to the provision of hairdressing, bus and medical services was included in the appendices to the affidavit, however, no details of the means of co-ordinating and managing service provision were included. Correspondence to the applicant regarding the provision of a medical monitoring system was also tendered as Exhibit E. 77The Court requested additional details on how this was to be provided and managed and Mr Juradowitch attempted to address the matter. He said that whilst no formal arrangements had been made, the services required could either be provided on site but would most likely be contracted. This would involve the facility entering into a service agreement with providers and would require the preparation of a management plan to ensure residents knew what services could be accessed and how they could obtain the services needed. He said that the provision of the services would be co-ordinated from the services room within the proposed community centre and would need someone to be employed on site at least from Monday to Friday and that it would also be desirable to have a non-resident caretaker including a person contacted outside office hours. He was unable to provide precise details on how the services were to be provided however suggested that lifestyle services, a mini-bus to access medical services at Dural and Galston could be provided. 78Mr Tomasetti requested that if the Court was satisfied that the services could be provided, and determined that consent be granted, that the issue of service provision be further clarified prior to final orders in the proceedings being made. Findings 79Clauses 26 and 42 each establish a condition precedent to the grant of consent by a consent authority. The condition precedent is the formation of an opinion of satisfaction, formed from written evidence before it at the time that the matters referred to in each clause will be provided. Preston CJ in Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297, whilst addressing the issue of compliance with provisions in the Environmental Planning and Assessment Regulation 2000, assists in demonstrating whether it is necessary to enter into arrangements for the provision of services or whether satisfaction can be achieved in some other way. He says: 40 Do each of the conditions precedent established by cll 27(1) and 74(1) of SEPP (SL) answer this description of a condition precedent in cl 2(1)(h)? I am of the opinion that they do not answer that description for a number of reasons. 41 First, cll 27(1) and 74(1) do not in terms require that any "arrangements" for the matters referred to in each clause have been made before development consent may be granted. The word "arrangements" does not appear in either clause. 42 The word "arrangements" in cl 2(1)(h) bears, in my opinion, the meaning given by the Court of Appeal in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370 at 378 [39] and [40]. That is to say, something in the nature of an understanding between two or more persons. 43 Clauses 27(1) and 74(1) of SEPP (SL) do not require any such understanding to have been made before development consent can be granted. 44 Secondly, the clauses do not require that "arrangements" have been made. Rather, the clauses require the consent authority to be satisfied that the matters referred to in the clauses "will" be provided. The clauses do not look to the past (namely that arrangements have been made) but to the future (that the matters referred to in the clauses will be provided). 45 Thirdly, the written evidence upon which the consent authority is to be satisfied as to the matters referred to in each clause, does not necessarily require proof of arrangements that have been made to provide for those matters. There may be a number of ways in which the written evidence may satisfy the consent authority that the matters referred to in the clauses will be provided. 46 Obviously, if an arrangement has actually been made to provide the matters referred to in the clauses, and written evidence of such arrangement is provided to the consent authority, that would be one way that the consent authority could be satisfied that the matters referred to in the clauses will be provided. However, that is not the only way the consent authority could be satisfied. 47 Another way would be for the written evidence that is supplied to the consent authority to state that, although arrangements in relation to the provision of the matters referred to in cll 27(1) and 74(1) have not yet been made, nevertheless such arrangements may be made in the future. This may be on some date specified or on or after the happening of some event, including the grant of development consent for the development. 48 Obviously, the more uncertain and contingent the making of arrangements in the future with external service providers for the provision of the matters referred to in cll 27(1) and 74(1) may be, the more difficult it may be for an applicant for development consent to satisfy the consent authority that the matters will be provided. This fact, however, does not remove the possibility that an applicant could satisfy a consent authority that the matters referred to in the clauses will be made, by providing written evidence that an arrangement in respect to matters will be made in the future, even though such an arrangement has not yet been made. 49 Yet another way of establishing that the matters referred to in cll 27(1) and 74(1) of SEPP (SL) will be provided may not involve the making of arrangements with external service providers at all, but instead may be for the development itself to provide the matters referred to in those clauses. ... 52 Accordingly, on a proper construction of cll 27(1) and 74(1) of SEPP (SL), the clauses do not, expressly or impliedly, require arrangements for the matters referred to in the clauses to have been made before development consent may be granted. 80Further guidance is provided in Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 where, at [27] Cowdroy J says: While the Court accepts that it would be unreasonable to require the applicant to provide a signed contract with a service provider for a development that has not yet been approved, letters to the effect that a service provider is able to provide services are insufficient. To be satisfied in respect of cll 2(1), 15 and 74 of the SLSEPP, the consent authority requires evidence that a particular service provider will provide the services, that the detailed terms under which the services are to be provided have been agreed, and that the services will be provided for the life of the development . The consent authority therefore requires: Draft contracts with service providers together with evidence that both parties agree to the terms of the draft contract; A servicing management plan that will be part of the consent and that provides for the continuation of the services for the life of the development. For proposals to be subdivided under the Community Land Development Act 1989 , a Community Management Statement under s 5 of the Act would fulfil this requirement. 81We are not satisfied that the applicant has provided sufficient evidence of how it intends to deliver the necessary services to the site. However, we are of the opinion that they can be provided in some manner that will satisfy the needs of residents. Accordingly, as the issue was one that was introduced by the Court and not included in the council's contentions, it is appropriate to allow the applicant an opportunity to provide precise details of the type and range of services to be provided to residents, demonstrate how these are to be provided and accessed by residents in accordance with the details outlined in Information Gateways . Details of staffing arrangements to manage the process and the facility should also be provided. The public interest 82The council contends that it would not be in the public interest to allow the development having regard to the number and nature of submissions received, the earlier decision of the JRPP to refuse a similar application, the undesirable precedent that it says will be set for similar development that it maintains is inappropriate and on the basis of the substantial operating costs that would be incurred by future residents of the proposed development in respect of the proposed waste water management system. 83We have addressed the cost of the pump-out system at [56] and consider that, whilst it is higher than if access to Sydney Water's reticulated sewerage system is available, it would be a cost that was know to persons considering purchasing a dwelling within the development and is not so high to be unreasonable. 84There were a number of matters raised by residents and these were summarised in the report to the JRPP, which is included within exhibit 5. The council did not press the issues of stormwater drainage, impact on downstream properties or the creek system or the ability of the road network to cater for the additional traffic. The remaining issues raised are those incorporated into the contentions and have been addressed in this judgment. 85The issue of precedent has been contended by the council and objectors to the application. This is due to the fact that other sites within the vicinity of the Galston Village are also subject to applications which propose development of the land in accordance with the provisions of the SEPP. This issue has been considered by this Court on a number of occasions. The Court of Appeal decision in Segal & Anor v Waverley Council [2004] NSWLEC 363 confirmed each merit appeal must be decided on its particular facts. Based on the reasoning of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 if faced with an application for a proposed development which may not be objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. We consider that each particular case must be considered on its merits and accordingly, consider the issue of precedent to be a peripheral matter and not providing grounds on which to refuse the application. This issue has recently been considered by Sheehan J in Hurstville v Goreski [2011] NSWLEC 188, where at [104] he states: 104 If the issue of precedent was a principal issue, as Mr Galasso submitted, and, if it is correct that the Commissioner " divorced " the question of precedent from the SEPP 1 objection, then he did, indeed, commit an error of law. However, I am not satisfied that the issue of precedent was a principal issue - it is not expressly required to be considered by SEPP 1, the LEP or the development standards, and thus should be seen as only a peripheral matter before the Commissioner, and not wholly relevant to the consideration of the SEPP 1 objection. ... Conclusion 86Having determined that the site is land which adjoins land zoned for urban purposes, the issue of permissibility is resolved. It is then necessary to test the development against the provisions of SEPP 2004. It is clear from that policy that it has primacy over any provisions within the LEP where there is an inconsistency and therefore, development that is not contemplated by that plan is permitted on the site subject to meeting certain controls. We have concluded that the development, whilst not according to those uses permitted under the LEP would be compatible with the existing and future uses within the zone due to its low scale and density, compliant setbacks and low impact. The low scale of development proposed ensures that the development is not out of character with the rural residential locality. 87There is no dispute that the development satisfies all of the relevant development standards contained within SEPP 2004 and we are satisfied that, subject to further clarification of how services will be managed and delivered, that access to those services can be provided. The applicant must provide further details of the management regime, staffing, timing and co-ordination methods proposed and conditions that reflect those arrangements are required. Those services must include provision of meals, personal care, nursing care, assistance with domestic work/housework, links to emergency services and the provision of transport. The provision of an on-site manager/co-ordinator to address the needs of residents and carry out the maintenance works as suggested by Mr Juradowitch is also appropriate as is the ability for residents to be provided with 24 hour emergency contact to ensure any issues are addressed in a timely manner. In addition, the community centre must be completed and operational prior to the issue of any occupation certificate for any stage of the development. Conditions of consent should be included that reflect this need. 88We are also satisfied that the means of water provision and disposal of sewage, including environmental and operational performance, are acceptable but must be finalised prior to any consent becoming operative. 89We provide the applicant with an opportunity to finalise details of the means of providing those services required for residents of the site as outlined in [80-81] and for the finalisation of conditions that reflect the requirements of this decision. Those conditions must include the larger pot sizes suggested by Mr Lakeman for the lower and mid storey plantings however, we consider that it is a matter for the landscaper to determine whether, for what will be the tallest trees, advanced pot sizes are utilised. We are concerned that these may not adapt readily to the site and would be guided by the expertise of the designer to ensure that the objectives of screening are achieved at an early stage. It is particularly important that any Vegetation Management Plan prepared includes a requirement that the initial weed clearing works, revegetation and maintenance of the STIF area is undertaken by appropriately qualified persons to ensure the ecological importance of that community is maintained. 90The applicant is to provide the servicing details to the council and the Court by 2 December 2011 and the council is to finalise consent conditions which reflect the terms of this judgment by 9 December 2011. 91Final orders will be made in Chambers. Sue Morris Commissioner of the Court Paul Adam Acting Commissioner of the Court ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2011