Land and Environment Court New South Wales Medium Neutral Citation: Vacy Rural Pty Ltd v Dungog Shire Council [2012] NSWLEC 1065 Hearing dates: 20 March 2012 Decision date: 20 March 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal upheld by consent Catchwords: CONSENT ORDERS: Modification application; appeal against a condition of consent; s 94 contribution and s 88B provisions. Legislation Cited: Environmental Planning and Assessment Act 1979 Dungog Local Environmental Plan 2006 Category: Principal judgment Parties: Vacy Rural Pty Limited (Applicant) Dungog Shire Council (Respondent) Representation: Applicant: Mr T To Respondent: Mr J Maston Applicant: Carroll & O'Dea Lawyers Respondent: Sparke Helmore Lawyers File Number(s): 10842 of 2011 Judgment 1COMMISSIONER: This is an appeal of the refusal by Dungog Shire Council to grant consent to modify development consent number 47/2006 lodged with the council on 4 July 2011. The application seeks the deletion and or modification of a number of conditions of consent. 2The appeal is made under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act). 3The proposal involves the creation of a 30-lot subdivision of Lot 122 DP 706044, known as 989 Gresford Road, Vacy. The allotments range in size from 800m 2 to 6.27 ha, with the average size being 1.5 ha. The development is to be serviced by a new road off Gresford Road. Construction has commenced. 4The site is about 2 km north of the village of Vacy. It has an area of 55.37 ha and is currently zoned Rural Lifestyle 1(1) under the Dungog Local Environmental Plan 2006 (DLEP). The surrounding land use is agricultural, the nearest residential development is the village of Vacy. 5The subdivision was approved on 15 December 2009, subject to 73 conditions of consent. On 20 September 2010, the applicant lodged a s96 modification application with the council to delete or modify a number of conditions (conditions 1,4,5,20,23,35,40,42,43 and 48). Conditions 10,14,34 and 47 were modified to increase the set monetary amounts in the consent. 6Condition 34 of the consent listed the increased s 94 contributions. This is now condition 33, the primary subject of this appeal. 7On 4 July 2011, the applicant lodged a second s 96 modification application seeking to amend conditions 33 and 34. Council sent notification letters to nearby landowners and only one objection was received. The concerns go to the need for upgrading of the public road and the provision of services. 8The applicant lodged the Class 1 application with the Court on 15 September 2011 against council's deemed refusal of the second modification application. 9The applicant seeks that Development Consent No. DA47/2006 be modified in the following manner: (a) Condition 33 be deleted and replaced with: Payment of a cash contribution to Council in accordance with the provisions of Dungog Section 94 Contributions Plan 2004, adopted 29 September 2004 in the amount of $5,018.00 per allotment plus an amount of $250.00 to manage the Section 94 Plan. (b) Conditions 34 (a),(f), (h) and (i) be deleted. 10Condition 33 is as follows: 33 Payment of a cash contribution to Council in accordance with the provisions of Dungog Section 94 Contributions Plan 2004 adopted 29 September 2009. The following contributions, which are subject to quarterly adjustment, are to be paid prior to the release of the linen plan and subdivision certificate. [Contributions to 16 individual facilities or services itemised] Total $17,827.00 / additional lot Stage 1 - 8 additonal lots Stage 2 - 21 additional lots Reason: This development results in increased demand on existing amenities or services that has been identified in respective contributions plans. These plans are available for inspection at Council's offices, Dowling Street, Dungog. Council will hold the money payable under this condition and utilize these funds to upgrade amenities or services in the future. 11The relevant parts are condition 34 are: 34 Pursuant to s 88B of the Conveyancing Act easements and restrictions as to user shall be created to achieve the following purposes: (a)Implementation and maintenance of the approved Environmental Management Plan (EMP) and approved Landscape Plan; (f) Restriction on the lots in accordance with the recommendations of the Visual Impact Assessment Report prepared by HDB Town Planning & Design; (h) Prohibiting clearing except in accordance with a PVP from the Hunter Central River CMA; (i) Requiring the disposal of effluent in accordance with the Douglas partners Geotechnical Report. 12The applicant contends that: * The contributions plan on which the figures in condition 33 are derived is out of date as it is based on projected population growth rates that will not be realised. * Many of the contributions do not satisfy the Newbury tests of validity. Some of the contributions relate to facilities that do not exist and there is no certainty as to if, when or where they will be constructed. * Many of the contributions are unreasonable and do not satisfy the provisions of s 94 of the Act for the same reasons given above. * Condition 34(a) should be deleted because the requirement to burden all owners with the provisions of the whole of the EMP is unreasonable and unlikely to result in an enhanced environmental outcome; * The relevant design issues behind condition 34(f) could be incorporated as controls as a clause in the s 88B instrument. * Conditions relating to a PVP are unnecessary; and the effluent management systems per lot are more appropriate at the development application stage for each allotment. 13The Council concedes that the Contributions Plan needs reviewing, as the projected growth of the area has not occurred. In regards to contention 2, the council contends that the Contributions Plan complied with the statutory requirements and the contributions imposed satisfy the Newbury tests. In regards to the provisions of s 94 of the Act, the council submits that the applicant accepted the benefit of the development consent for over 18 months and commenced works before seeking to challenge the conditions. 14In regards to condition 34, the council agrees that the whole of the EMP should not be included but Part 2 of that document, and the appendices, should be. The council agrees that only specific building design controls should be included in the s 88B instrument. The condition on PVPs should be retained as a reminder to individual property owners as to their obligations. The condition relating to effluent disposal is agreed to be modified. 15The issues between the parties have been resolved and the parties are seeking consent orders from the Court. 16As required, the objector was notified. I am advised that the objector is satisfied with the agreed outcome. 17The recalculated contribution is $12,026.27 / additional lot created, for a total of 29 lots. Condition 34 concerning the s 88B instrument has been modified and simplified to the satisfaction of the parties. Condition 51 relating to effluent disposal has been deleted and a relevant provision is incorporated into condition 34. 18After hearing the parties submissions, I am satisfied I have the relevant power to make the consent orders sought by the parties. 19By consent, the Court orders: (1)The appeal be upheld (2)The application dated 30 June 2011 made pursuant to section 96 of the Environmental Planning and Assessment Act 1979 to modify Development Consent 47/2006 (as modified 3 November 2010 by amendment No. 1), for the subdivision of Lot 122 DP 706044, known as 989 Gresford Road, Vacy, be approved subject to the conditions in Annexure A. (3)The Court notes that the parties have agreed that each party bears its own costs of these proceedings. __________________ J Fakes 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: 21 March 2012