Land and Environment Court New South Wales Medium Neutral Citation: PRJM Pty Ltd v Hawkesbury City Council [2017] NSWLEC 1339 Hearing dates: 8,9,10 February 2017, 1 May 2017 Date of orders: 30 June 2017 Decision date: 30 June 2017 Jurisdiction: Class 1 Before: Brown C Decision: See orders at [88] Catchwords: DEVELOPMENT APPLICATION: subdivision - inconsistent with some aims of the local environmental plan - inconsistent with some objectives of the zone - impact on existing vegetation - inappropriate method of disposal of sewage - inadequate arrangements for water supply, stormwater disposal, waste collection and road access – appropriate conditions of consent Legislation Cited: Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 2012 Sydney Regional Environmental Plan No 20-Hawkesbury-Nepean River (No 2-1997) Category: Principal judgment Parties: PRJM Pty Ltd (Applicant) Hawkesbury City Council.(Respondent) Representation: Counsel: Mr P Tomasetti SC (Applicant) Ms R McCullough (Respondent) Solicitors: Brock Partners (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/162961 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application DA0830/15 that proposes a 37 lot community title subdivision, including the construction of a new private road, drainage system and installation of a water recycling facility to treat sewage. Two lots (Lots 1 and 21) would be used for these services and the remaining 35 lots would be used for residential development and range in size from 708 sqm to 1355 sqm. 1. The council maintains that the application should be refused because the proposal will: * be inappropriate for the site, * have an adverse impact on existing vegetation, * have an inappropriate method of disposal of sewage, and * have inadequate arrangements for water supply, stormwater disposal, waste collection and road access. The site 1. The site is 67 Kurrajong Road, Kurrajong and is Lot 1 in DP 1185012. It is irregular in shape with an area of 3.23 ha and is vacant. The site is intersected by an access track, covered in vegetation, consisting of canopy trees and lower level weeds and does not have access to reticulated sewer. 2. The site has direct access to Kurrajong Road, surrounds three residential lots along Kurrajong Road and shares property boundaries with 13 other residential lots. The majority of land uses surrounding the site are used for residential purposes. The residential properties surrounding the site range from medium sized residential lots to larger residential lots with a land area of approximately 2ha. 3. Prior to July 2015, the site was Crown Land owned and managed, known as Lot 63 in DP 14736 and was created for future public requirements. Relevant planning controls 1. The site is within Zone R2 Low Density Residential under Hawkesbury Local Environmental Plan 2012 (LEP 2012). The subdivision of land is permissible, with consent. Clause 2.3(2) provides that the Court must "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". 2. Clause 4.1 permits subdivision of the land provided that the new lots created are not less than the minimum subdivision lot size shown on the Lot Size Map. The Lot Size Map identifies that a minimum lot size of 450 sqm applies to the land and that the land is located within "Area A". "Area A" refers to cl 4.1D (1) of LEP 2012. 3. Clause 4.1D(1) provides an exception to the minimum lot size for certain land and the relevant section of this clause is: (1) Despite clauses 4.1, 4.1AA and 4.1A, development consent must not be granted for the subdivision of land that is identified as "Area A" and edged heavy blue on the Lot Size Map if: (a) arrangements satisfactory to the consent authority have not been made before the application is determined to ensure that each lot created by the subdivision will be serviced by a reticulated sewerage system from the date it is created, and 1. Clause 6.4(4) states: (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. Clause 6.7 states: 6.7 Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable road access. 1. Clauses 4.1D(1), 6.4(4) and 6.7 contain requirements that require a positive response to allow the further consideration of the application. A negative response to any of the clauses must see the application refused. 2. Hawkesbury Development Control Plan 2002 (DCP 2002) applies, particularly Part C Chapter 7 - Effluent disposal and Part D Chapter 3 - Subdivision 3. Sydney Regional Environmental Plan No 20-Hawkesbury-Nepean River (No 2-1997) (SREP 20) applies to the site. Clause 4 relevantly states: 4. Application of general planning considerations, specific planning policies and recommended strategies (1) The general planning considerations set out in clause 5, and the specific planning policies and related recommended strategies set out in clause 6 which are applicable to the proposed development, must be taken into consideration: (a) by a consent authority determining an application for consent to the carrying out of development on land to which this plan applies, and (b) by a person, company, public authority or a company State owned corporation proposing to carry out development which does not require development consent. Inappropriate development 1. The Council contends that the development is inappropriate on planning grounds as the proposal is contrary to the overall aims and objectives of LEP 2012, the objectives of the R2 Low Density Residential zone, the subdivision layout has not been planned having regard to site constraints and insufficient information has been submitted in support of the application to approve the proposed subdivision. The evidence 1. Expert evidence was provided by town planners Mr William Pillon, for the council and Mr Neil Kennan for the applicant. 2. Mr Pillon states that the proposed development is inappropriate for the following reasons: * contrary to the aims and objectives of LEP 2012 and the objectives of the R2 zone, * based on expert advice provided by Dr Patterson, the council's expert engineer on sewage disposal, the application is unable to demonstrate that arrangements satisfactory to the consent authority can be made as required by cl 4.1D(1) of LEP 2012, * it would set an undesirable precedent in supporting a subdivision that would have an unacceptable impact on the future design, development and management of the proposed lots, * the subdivision relies on the development of the land to be confined to specific areas on lots that are limited in area and are too restrictive to allow for the orderly and economic development of land, * the subdivision does not provide for an appropriate level of flexibility for future development of the land and achieve both the objectives of the zone and merits envisaged at subdivision stage, * larger residential lots would ensure that the land could be developed in a manner that provides for suitable services and land area to protect the traditional character of the surrounding residential area, and * the subdivision relies on a sewerage system and water supply service to be approved by external agencies. 1. Mr Kennan states that the proposed service arrangements are suitable for a community title subdivision and would permit the orderly and economic development of land. The proposed development takes reasonable account of all the natural and other constraints of the site and will conserve the land so that it can be used for its intended purpose. Any development of the site will have an impact on the native vegetation of the site, however the relevant issue is whether that impact is acceptable. In his opinion, the subdivision design takes into account the native vegetation on the site which includes dense harmful weeds, regrowth and some older trees. The proposal provides for a subdivision pattern, character and appearance which is consistent with surrounding development. 2. Based on the information prepared by the applicant in this matter, Mr Kennan states that there is sufficient information available to enable the Court to determine that the subdivision has been designed to maximise the retention of significant vegetation while at the same time allowing for the orderly and economic development of the site. A suitable method of sewage reticulation is provided to the proposed development in accordance with the design prepared by Dr Martens, the applicant's expert engineer on sewage disposal. 3. The proposed number of lots, the proposed lots sizes, the resultant density and the associated works are perfectly consistent with the surrounding residential development of Kurrajong, its varied cadastral pattern, and will be compatible with the character of the locality. Findings 1. "Inappropriate development" is not a term that should be used to describe a contention. A development may be inappropriate if it does not satisfy certain criteria but it is the criteria that are the contentions – different criteria should not be grouped into one collective contention. I have attempted to extract what appears to be concerns of the council however some are repeated in other contentions. Plan objectives 1. The council contentions state that the proposed subdivision is contrary to the following plan objectives in cl 1.2(2): (a) to provide the mechanism for the management, orderly and economic development and conservation of land in Hawkesbury, . (c) to protect attractive landscapes and preserve places of natural beauty, including wetlands and waterways, (d) to protect and enhance the natural environment in Hawkesbury and to encourage ecologically sustainable development, 1. Even though cl 1.2 provides Aims of the Plan and cl 1.2(2) provides specific aims of the plan; there is no operative clause that requires consideration be given to these aims in the assessment of the application, in the same way that cl 2.3(2) requires that "regard" has to be given to the zone objectives when considering a development application in that zone. In any event, I am satisfied that any matter raised in the plan objectives is raised, in generally more detail, through the other contentions raised by the council. Zone objectives 1. The zone objectives are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To protect the character of traditional residential development and streetscapes. • To ensure that new development retains and enhances that character. • To ensure that development is sympathetic to the natural environment and ecological processes of the area. • To enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale. • To ensure that water supply and sewage disposal on each resultant lot of a subdivision is provided to the satisfaction of the Council. • To ensure that development does not create unreasonable demands for the provision or extension of public amenities or services. 1. The council contentions do not identify any specific objectives but broadly state that the proposed subdivision is unacceptable because: * the sewerage system is unacceptable, * the number of lots is excessive and out of character with the Kurrajong area, and * the subdivision does not properly address site constraints of topography, proximity to adjacent dwellings and loss of trees. 1. The matters relating to the sewerage system and loss of trees are addressed later in the judgment by Dr Martens and Dr Patterson and I am not aware of any meaningful evidence on the site constraint of topography and proximity to adjacent dwellings. With the benefit of the site inspection and an understanding of the subdivision layout, it would be difficult to accept that these matters would warrant the refusal or modification of the application. 2. On the matter of character, Mr Pillon and Mr Kennan disagreed on the impact that the proposed subdivision will have on Kurrajong. The site is located opposite land within Zone RU1 Primary Production and Mr Pillon and Mr Kennan agree that this land is different to the existing and desired future character of the R2 zone. 3. Mr Pillon describes the R2 zoned area as having a number of distinct areas with some areas greater than 1000 sqm in size with other areas below this size. Mr Kennan describes the area, in terms of lot size, as varied but similar to the areas of the proposed development. Mr Kennan states that any test of character should be based on the desired future character anticipated by the R2 zone requirements for lot size. LEP 2012 anticipates a minimum lot size of 450 sqm and also the opportunity to have on site disposal of sewage, subject to it being disposed on site in a satisfactory manner. 4. In relation to the question of whether the proposed subdivision is "compatible with the character of the living area and has a domestic scale", I agree with the comments of Mr Kennan that the desired future character is that anticipated by the R2 zone rather than a selective assessment against parts of the R2 zoned land. With the proposed lot sizes ranging in size from 708 sqm to 1355 sqm, I can comfortably conclude that the proposed development is compatible with the R2 zoned area of Kurrajong. 5. If regard is had to the zone objectives in the context of those matters raised by the council in their contentions, then I am satisfied that adequate regard has been given to the R2 zone objectives in the proceeding paragraphs, in accordance with cl 2.2(3) and the objectives present no barrier to the approval of the application. Sewage disposal 1. The proposal provides for the collection of domestic sewage via a reticulated sewer system from the 35 proposed dwellings, with recycled water returned to dedicated sub-surface irrigation areas on each lot. The reticulated sewer flows either directly to the packaged Water Recycling Facility (WRF) on Lot 21, or to a pump station on Lot 1 for conveyance to the WRF. Reclaimed water will be pumped to each of the 35 lots for sub-surface irrigation onto a dedicated sub-surface irrigation area for dispersal. The WRF and the effluent recycling are proposed to be operated and managed under community title. 2. Expert evidence on this contention was provided by Dr Martens, for the applicant and Dr Patterson, for the council. They produced a joint report that addressed the contentions raised by the council. The specific relevant matters in dispute related to: * estimated daily water use, * extent of soil investigation, * seepage from irrigation areas, * area of proposed irrigation fields, * timing of construction of proposed irrigation fields, and * water balance. Estimated daily water use 1. Dr Martens states that If an average of 3 persons (EP) per house is assumed, which is the expected average occupancy rate across the sub-division irrespective of dwelling bedroom numbers, then the design flow rate would be 450 L/dwelling/day. A rate of 600 L/dwelling/day has however been adopted, which is 4EP/house, and is a conservative design allowing for an increase of 33% over design. Dr Martens also states that the Australian Bureau of Statistics (ABS) identifies an occupancy rate of 2.7 persons/dwelling for Kurrajong and that this figure was used in estimating the estimated daily water use by the council in a recent approval for on-site disposal in a development in Vincents Road at Kurrajong. 2. Dr Patterson states that an average of 4 EP/house is assumed, for a 3-bedroom dwelling, for which the design daily flow rate would be 600 L/dwelling/day. 3. I accept that a rate of 600 L/dwelling/day is appropriate. Extent of soil investigation/ seepage from irrigation areas 1. Dr Martens states that sufficient information has been provided in terms of soil properties to establish that the soils on the site soils will not constrain the application of recycled effluent. In addition to the previous testing, 6 boreholes and 2 hydraulic push tubes (for comparative purposes) were undertaken by Dr Martens on 20 January 2017. These reveal similar findings to previous boreholes, although clay content is somewhat lower at shallow depths than previous reports. Soil laboratory testing was undertaken by SESL Australia, at the suggestion of Dr Patterson, and this testing indicates that the soils are non-saline, non-sodic, non-dispersive, with a high capacity for phosphorus sorption. Field texture investigations by Dr Martens reveal that soils are well structured, well drained with no material impeding layer, and well suited to recycled water application. Dr Martens is of the view that there is no need for further soil testing based on his investigations to date. 2. Dr Martens accepts that while the words "Light clay" are used in the description of the "Soil/rock material test description" in the test bores (REF BH 001-006) to interpret the design irrigation rate in Table M1 of "Australian and New Zealand Standard: On-site domestic wastewater management" AS/NZS 1547:2012 (AS 1547) (p 160), his opinion, from the physical inspection of the soil profile is that the soil texture is best described as "Loams", " Sandy loams" or even "Gravels and sand" where the design irrigation rate is 4mm/day or 5 mm/day for the latter soil texture. Adopting a conservative approach, Dr Martens adopts a design irrigation rate of 4mm/day. 3. The applicant also provided evidence from Dr Pam Hazelton, although somewhat reluctantly because her involvement with the soil on the site involved 6 test pits in 2016. These were not dug for the purposes of establishing whether it could accommodate the sub-surface irrigation but rather whether the soil characteristics were consistent with a certain endangered ecological community. In any event, her evidence was helpful in that she stated that the soil profile would not impede the flow of treated effluent from the sub-surface irrigation. She described the soil as "graduational, with no significant colour changes, no obvious layers and no perched water table". 4. Dr Patterson states that it is usual to report soil structure, soil dispersibility, and salinity/sodicity and other chemical properties in determining site/soil constraints. "Environment and Health Protection Guidelines: On-site sewage management for single households." Department of Local Government (1998), Environmental Guidelines: Use of Effluent by Irrigation. Department of Environment and Conservation, Sydney (2004) and AS 1547 all rely upon site and soil descriptions. While Dr Patterson had visited the site prior to the hearing, his soil investigations were limited to holes dug with a spade to a depth of around 250mm. Dr Patterson relies on the words "Light clay" in the description of the "Soil/rock material test description" in the test bores of Mr Martens (REF BH 001-006) to interpret the design irrigation rate in Table M1 of AS 1547 of 3 mm/day. 5. I accept the evidence of Dr Martens that a design irrigation rate of 4 mm/day is appropriate for a number of reasons. First, the concerns of Dr Patterson stem solely from the words "Light clay" in the description of the "Soil/rock material test description" in the test bores of Mr Martens. Given the physical investigations undertaken by Dr Martens and Dr Hazelton and their evidence on the ability of the soil to accept the sub-surface irrigation, the sole reliance on the descriptions in Table M1 should not be preferred above actual physical investigations of the soil. Second, the independent evidence of Dr Hazelton supports the conclusions of Dr Martens. Third, both Dr Martens and Dr Hazelton are experienced soil engineers and importantly, have conducted physical soil testing on the site compared to the limited testing undertaken by Dr Patterson. Fourth, the comprehensive testing through test pits, core sampling, laboratory testing and field texture testing supports the conclusions of Dr Martens. 6. I accept a design irrigation rate of 4mm/day based on the evidence of Dr Martens and Dr Hazelton. Area of proposed irrigation fields 1. Dr Martens states that the soil investigations show that there is ample depth to install a shallow sub-surface drip irrigation system using a design irrigation rate of 5 mm/day however a rate of 4 mm/day as a factor of safety is adopted. 2. Dr Martens concludes that the irrigation area is therefore 150 sqm and when the agreed setbacks are applied, an area of 203 sqm is required for the sub-surface irrigation area. 3. Dr Patterson maintains that 3mm/day is appropriate thus, a minimum area of 200 sqm for dedicated irrigation area is required however when the agreed setbacks of are applied to the design area, an area of 270 sqm is required. 4. Based on a design irrigation rate of 4 mm/day, I accept the irrigation field for each lot (including setbacks) is 203 sqm. Timing of construction of proposed irrigation fields 1. Dr Martens states that at the development application stage for a dwelling, applicants will be required to prepare a landscape plan that shows the final location and set-out of the recycled water irrigation areas. This will need to comply with the conditions of approval in terms of area and setbacks. Ultimately the entirety of the recycled water management scheme will be overseen and managed by the community association, thus ensuring long-term operation. Dr Martens sees no reason why council would require a separate approval under s68 of the Local Government Act 1993. However, if council does require this, then a separate and additional mechanism can be put in place for the long-term operation of the scheme to be overseen. Dr Martens notes also that it is expected that the IPART license operating conditions will cover operation of the irrigation areas and usually negates the need for any further s68 approval. 2. Dr Patterson states that it appears that the proposal requires each lot owner to be responsible for a s 68 application to council for the location and set out of the irrigation area, its maintenance and continued operation without any input from the developer. Such actions may limit the functioning and long term viability of the irrigation area, particularly if the soil profile in the effluent irrigation area no longer resembles the soil profile used for the current development application for subdivision. 3. As a general approach, I agree with Dr Martens that applicants should be required to prepare a landscape plan at the dwelling application stage that shows the final location and set-out of the recycled water irrigation areas. It would seem impractical to set aside areas for irrigation that may conflict with a future dwelling on each lot. The only caveat is that prospective purchasers need to be fully aware of their obligations in terms of the sewage disposal for each new residential lot. Water balance 1. Dr Martens states that no water balance for the dedicated effluent re-use fields is required. The fields have been sized in accordance with AS 1547 which does not rely on water balances. Dr Patterson states that it is usual that local conditions of rainfall, and evaporation are taken into account. 2. I accept Dr Martens evidence that water balances are not required. 3. For the reasons in the preceding paragraphs, I am satisfied that pursuant to : * clause 4.1D(1) of LEP 2012, "arrangements satisfactory to the consent authority have been made before the application is determined to ensure that each lot created by the subdivision will be serviced by a reticulated sewerage system from the date it is created", * clause 6.4(4)(a) of LEP 2012, "the development is designed, sited and will be managed to avoid any significant adverse environmental impact", in this case disposal of sewage, * clause 6.7(c) of LEP 2012, adequate arrangements have been made for the "the disposal and management of sewage" available when required, * clause 3.8.4, Part D of DCP 2002 Effluent Disposal, the Aims and Objectives are satisfied, * clause 5 of SREP 20 in relation to General planning considerations, particularly sub sec (d) "the relationship between the different impacts of the development or other proposal and the environment, and how those impacts will be addressed and monitored" have been taken into consideration, and * clause 6(3), (4) and (17) of SREP 20 in relation to the specific planning policies and related recommended strategies for Water quality, Water quantity and Sewerage systems and works, have been taken into consideration. Impact on existing vegetation The evidence 1. The contention raised by the council is that the proposed development application should be refused as it would have an adverse impact on the trees located on the land and on the surrounding locality and consequently the loss will have an unacceptable impact on the scenic quality of the area. 2. Expert evidence was provided by Mr Guy Paroissien, an arborist for the council and for the applicant by Ms Narelle Sonter, a landscape designer and Dr Anne Marie Clements, an ecologist. 3. Mr Paroissien states that the retention of larger canopy trees is less likely on smaller lots due to higher potential for conflict with infrastructure and perceived threats from large trees in the vicinity of dwellings (branch/tree failure, bush fire risk etc). The proposed lot layout will result in the short and long term removal/loss of a significant number of trees in the north-west area of the site and the loss of these trees will impact the landscape character of the site. 4. Mr Paroissien notes that the proposed subdivision layout is uniform throughout the site and makes no particular design allowance for tree retention in the north-west part of the site, indicating that the proposed tree retention is incidental to, rather than a result of the proposed lot layout. He acknowledges that the most significant tree on the site (Tree 42), is now proposed to be retained rather initially removed. 5. In terms of replacement plantings, Mr Paroissien states that the proposed plantings on the Landscape plan prepared by Botanica include Brachychiton populnens (Kurrajong) and Hymenosporum flavum (Native Frangipani) as proposed street tree plantings however these are not considered to be locally native species. The Landscape Plan also nominates tree locations in the rear gardens of the proposed lots but does not specify whether these are to be locally native, native or exotic species. Mr Paroissien notes that the evidence from the applicant's ecological expert, Dr Clements, recommends native trees with local provenance, which he supports. 6. Mr Paroissien notes that tree survey (the Travers plan) identifies 171 trees on the site and that numerous trees are missing. The Landscape Plan identifies that 107 trees are proposed to be retained however in the absence of detailed arboricultural assessment from the applicant, Mr Paroissien states that 6 trees indicated in the schedule on the Landscape Plan to be retained are not actually shown on the Landscape Plan but are shown to be within either the proposed road or nominated dwelling footprints and therefore cannot be retained as nominated. The remaining 89 trees are considered likely to be impacted by the development, many of them significantly so. 7. Ms Sonter states that in the orderly development of a residential subdivision with a number of trees, there will inevitably be a loss of some existing trees. However, the proposal incorporates the retention of more than 60 canopy trees on site and notwithstanding that some of these trees may later be removed to accommodate wastewater irrigation areas on individual lots, this does represent a significant retention of existing canopy on the site. 8. The natural beauty of the locality is also enhanced by the plantings within the gardens of existing residential development in the locality. The size and shape of each of the proposed lots is generous and provides ample opportunity to establish gardens with the diversity of species over several canopy levels that typifies the existing residential landscapes within the locality. 9. Ms Sonter states that the applicant acknowledges the significance of the trees on site and the contribution that they make to the landscape character of the locality. Accordingly it is proposed to retain as many of the existing trees on site as can possibly be retained with the orderly and reasonable development of the site as a residential subdivision. The trees that are shown as being retained are those which are located to allow for: * a road through the site, * adequate driveway access from that road to each lot, * a reasonably sized building footprint with appropriate setbacks, * adequate room for wastewater irrigation requirements, and * maintenance as an Inner Protect Area (IPA). 1. Ms Sonter states that in response to Mr Paroissien that attractive, small to medium size trees which should perform well in the locality have been included in the list of indicative trees for street tree planting. The Street Tree species list can be amended to include alternative species, as preferred by council. 2. In response to the concerns expressed by Mr Paroissien; Ms Sonter states that the amended landscape plan will remove reference to the proposed irrigation areas as these areas will not be constructed until the time of construction of the future residence for each lot. Whilst it is acknowledged that in some instances the construction the irrigation area may require the removal of a tree, it is not necessarily the case. Also, the landscape plan shows indicative footprints only and the actual future building footprint on any lot and its proximity to and impact on any existing tree to be retained will be the subject of a future development application for the lot. Similarly, for each lot, the development application will generally be required to incorporate a landscape plan which identifies all species to be planted. 3. Dr Clements and Mr Paroissien agree that the site contains a moderate to high levels of Eucalyptus amplifolia (Cabbage Gum) in the north-west of the site, with limited occurrences elsewhere on the site. Dr Clements is of the opinion that the canopy species E. amplifolia is not likely to be the original species of the site, as E. amplifolia is a species usually associated with watercourses and low-lying sites, not on well-drained slopes typical of the site. From recent observations Dr Clements notes that not all of the individuals of E. amplifolia in the north-west corner of the site were recorded on Travers plan and there is significantly more saplings of E. amplifolia in the north-west than indicated. There are also minor occurrences of saplings of E. amplifolia (up to approximately 20 m) near the southern boundary from seed showers from former paddock fence line trees offsite to the south. 4. Dr Clements states that the pattern of E.amplifolia occurrence onsite may be indicative in soil moisture, as well as the source of the seed showers being from trees visible on the 1961 aerial photograph. From the quadrat data and confirmed by inspections, the most frequently recorded (and with the highest percent projected foliage cover in the unslashed areas) was the noxious weed Ligustrum spp. 5. In Dr Clements' opinion , the site does not represent a natural environment in the Hawkesbury area, as it is: * former cleared grazing land colonised by E. amplifolia and Acacia parramattensis from a small number of native trees visible on the 1961 aerial photograph, and * the understorey vegetation on the site is dominated by exotic species, mainly Ligustrum spp. and Lantana camara, with vegetation recorded in Quadrats 3, 6, 7, 8, 9 close to or over the 75% weed cover threshold for non-recovery of native vegetation. Findings 1. The comments of Ms Sonter and Dr Clements must be largely accepted in relation to the impact on existing vegetation and the scenic quality of the area. The site has a considerable tree cover but also has a high proportion of weeds that adds to the perception of dense vegetation. There was no dispute that the existing trees are regrowth based on the site being used previously for grazing – a fact clearly established by aerial photographs. Of considerable importance to this contention is that the site is also zoned for low density residential development. The consequence of the zoning is that there is a reasonable and justified expectation that some form of residential form of development, consistent with the zoning of the site, will occur and this will necessitate the removal of some of the existing vegetation. 2. I accept that the Travers report was only accurate to about 1m or 2m by satellite positioning, as well as the difficulty in accessing some trees because of the weed infestation. Given the zoning of the site and the minimum lot size, it would seem that the focus should be to maximise the retention of trees on the site while allowing development to occur , consistent with the R2 zone. 3. While the council adopts the approach the trees need to be accurately defined in relation to the hypothetical building platforms and irrigation areas; I am not satisfied that this is the optimal solution. It would seem that in order to maximise tree retention, the applicant should be required to remove the weed infestation and accurately plot and assess the trees on the site with a BDH>300mm. Until a development application is submitted, the retained trees on each of the residential lots should remain. On lodgment of a development application for a dwelling and any ancillary buildings, an assessment can be made on the retention of any trees, taking into account the design of the dwelling, the irrigation area and the value of the tree. Of the trees on the site, it was agreed that Tree 42, which was considered to be tree of some importance, would now be retained. 4. The contentions specifically identify that the proposal is contrary to s 3.7.5 of the subdivision chapter of DCP 2002 which specifies that vegetation which adds to the visual amenity of a locality and/or which is environmentally significant should be conserved in the design of the subdivision proposal. Also, the contentions states that the proposal does not comply with s 3.2 of the subdivision chapter of DCP 2002 which specifies that vegetation should be retained where it forms a link between other bushland areas and that all subdivision proposals should be designed to minimise fragmentation of bushland. 5. While these are requirements should be considered, they are not an absolute requirement and any application for subdivision must take into account the other circumstances that relate to the site, particularly in this case, the R2 zoning of the site, the minimum lot size of 450 sqm and the quality of the vegetation on the site. 6. For the reasons in the preceding paragraphs, I am satisfied that pursuant to : * clause 6.4(4)(a) of LEP 2012, "the development is designed, sited and will be managed to avoid any significant adverse environmental impact", * clause 3.2 and cl 3.7.5 of DCP 2002 have been appropriately considered, * clause 5 of SREP 20 in relation to General planning considerations, particularly sub sec (d) "the relationship between the different impacts of the development or other proposal and the environment, and how those impacts will be addressed and monitored" have been taken into consideration, and * clause 6(6) of SREP 20 in relation to the specific planning policies and related recommended strategies for Flora and fauna, have been taken into consideration. Conditions 1. There are a number of conditions in dispute and also a number of conditions that will require amendment based on the finding in the judgment. The condition numbers relate to the original condition numbers of the council. 2. Condition 9 and 10 – these conditions make reference to a Rehabilitation Plan when no plan is required however the council maintains that it is necessary to ensure that weed management will occur as part of the proposal. I agree with applicant that the reference to the Rehabilitation Plan should be deleted as management of weeds can be done without the need for a Rehabilitation Plan. A separate condition addresses the removal of the weeds. 3. Condition 12 - these conditions relate to earthworks and the applicant and makes reference to "effluent disposal areas". The applicant states that these areas should not be designated at this time but rather at the DA stage for a dwelling. The council states that the subdivision time is the appropriate time for designating the areas and if the areas need to be changed then this can be done as part of the DA stage. I agree with the applicant that the most efficient approach is to define the area when the design of the proposed dwelling is known although greater information needs to be available to any prospective purchaser through the s 88E Instrument. 4. Condition 16 - this condition requires an arboriculture report to, in part, identify the trees to be retained. The applicant states that this report is not required because of the zoning of the land, the trees have been previously identified and the work required by the current Weed Order will likely require tree removal. The council states that the condition should remain as there is no objective analysis as to whether the trees proposed for retention can be sustainably retained. 5. The Travers report was generally accepted as being inaccurate and not containing all trees that were greater than a Diameter Breast Height (DBH)>300mm. The identification of all trees on the site with a DBH>300mm should be provided (the Tree Location Plan) with sufficient accuracy so that potential house footprints can be located and the impacts on any tree with a DBH>300mm clearly identified. The significance of each tree should also be identified although trees in the road reserve need not be identified. Clearly, this must be done after the removal of the existing extensive weed infestation on the site. 6. Condition 23, 53 - this condition requires certain infrastructure to be provided and approved prior to a Construction Certificate: kerb and gutter (condition 23(a)), sealed road shoulder (condition 23(b)), stormwater drainage (condition 23(c)), and footpaving (condition 23(d)). The applicant argues that all conditions should be deleted whereas the council maintains that the conditions are warranted based on the additional traffic generated by the development. 7. On this condition, expert evidence was provided by Mr Brodie, for the applicant and Mr Vaby, for the council. The conditions sought by the council are not unreasonable for the subdivision of land within a R2 zone. The applicant has sought to develop the land to a level anticipated by the zone and there is consequential infrastructure that should be provided as part of that redevelopment that includes kerb and gutter, construction of a road shoulder, stormwater drainage and footpaving, as would be expected in a R2 zone. However, I do not accept the council's position that the applicant should be expected to carry out those works for the existing properties in Kurrajong Road although there may be benefits if the engineering work for the existing dwellings is conducted concurrently with the proposed development, at the cost of the council. 8. Condition 25, 41 - this condition requires an approval under s68 of the Local Government Act 1993 and a license under the Water Industry Competition Act 2006. It is not clear from the evidence whether both are required or only one so the condition can remain. 9. Condition 28 - this condition requires the preparation and notification of an owners operating manual for the proposed sewerage system, including a schematic cross-section of the irrigation field. The council seeks the inclusion of the conditions to alert potential buyers and the applicant seeks the deletion of the condition as this matter will be addressed at the DA stage. 10. I accept the condition can be retained so that prospective owners are aware of the operation of the sewage disposal system. 11. Condition 40- this condition requires compliance with the Environmental Management and Rehabilitation Plan, the arboricultural impact assessment and the Tree Protection Plan. I accept that this condition be amended to refer only to the Environmental Management Plan as the Rehabilitation Plan, and the Tree Protection Plan are no longer required and the arboricultural assessment of the trees with BDH>300mm is addressed elsewhere. 12. Condition 64 – this condition requires that certain matters are to be included in a public positive covenant under s88E of the Conveyancing Act 1919. These include the responsibilities of the Community Association, including the fencing of the OSD and basin areas. These are not opposed by the applicant. 13. Having found that the location and configuration of the irrigation areas is best left to the submission of a DA for a dwelling on each lot, it is appropriate that additional requirement should also be included in the s88E public positive covenant so that prospective purchasers are fully aware of their obligations if they purchase a lot in the subdivision. These are: * the irrigation area, including setbacks, * activities not appropriate for the irrigation areas, * consideration of the Tree Location Plan when submitting a DA for a dwelling and ancillary buildings, and * bushfire protection areas. 1. Conditions 72, 73, – these conditions require the final plan and a survey plan to identify all water and sewerage system infrastructure as well as other matters. Water and sewerage system infrastructure are still relevant and the conditions should remain however other matters identified in the conditions can be deleted. 2. Conditions 75, 77 - condition 75 requires a Community Management Statement to identify certain matters on the land. There is agreement on certain matters and disagreement on other matters however only part of sub sec (a) is in conflict with the judgment. The words "…including details of the size and desired location of effluent disposal and buffer areas within each lot" can be deleted. Sub sec (b), (c) and (f) can be deleted because of the reference to the tree retention plan. The second dot point in condition 77 can be deleted for the same reason as sub sec (a). 3. Condition 81 – this condition requires a more onerous noise standard than provided under the Noise Control Act and can be deleted. Orders 1. I am satisfied that approval should be granted to the proposed subdivision but on terms different to that suggested by the applicant or the council. I have attempted to amend the conditions of consent to reflect the findings in the judgment however these amendments may require further amendment. I propose to stay the orders for a period of 14 days for the parties to review the conditions to ensure that they are consistent and properly reflect the findings in the judgment. The stay and the invitation to review the conditions is not an invitation to re-argue any of the contentions or make further submissions on matters already addressed. 2. The orders of the Court are: Part A; 1. The appeal is upheld. 2. Development Application DA0830/15 for a 37 lot community title subdivision, including the construction of a new private road, drainage system and installation of a water recycling facility to treat sewage with two lots would be used for services and the remaining 35 lots would be used for residential development at. 67 Kurrajong Road, Kurrajong is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, B, C and D. Part B; 1. The orders in Part A are stayed for a period of 14 days from 30 June 2017 for the parties to make any written submissions on the conditions in Annexure A to ensure consistency and to ensure that they fully reflect the findings in the judgment. Final orders will be made in chambers. _________ G Brown Commissioner of the Court 162961.16 (C) gtb (54.1 KB, pdf) 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: 30 June 2017