Awesome Corowa Pty Ltd v Federation Council

The proposal

1. The proposal now before the Court involves the subdivision of two separate parcels of land into a total of 306 residential allotments, two drainage reserves, three public recreation reserves with associated roads, footpaths and infrastructure works. The subdivision would be staged over a total of 13 stages.
2. Whilst some works external to the site were shown on the plans that accompanied the application, Exhibit A, Mr Hemmings SC for the applicant, advised that the application did not include any works within Cemetery Road or works necessary to provide water and sewerage services to the site that were external to the sites. This is contrary to the information provided on both the plans and documentation submitted with the amended application which indicate that the works, including bus stop locations, carparking provision and layout along Cemetery Road to preserve vegetation, would form part of the subdivision. No further amendment of the application to reflect these changes has occurred. This issue is also considered below.
3. All water, sewerage, electricity, telecommunication and drainage internal of the site would be provided as part of each stage. Kerb and gutter and footpaths would also be provided.
4. The construction of the two drainage basins would also form part of the application, however no embellishment of the land to be dedicated as public reserve is proposed. Two of these areas would be for the purposes of local parks, one being an extension of the existing park in Katrina Circuit and the other, towards the centre and east of the northern site adjacent to what would be an extension of Chisnall Street. The third reserve is the land required for road widening along Cemetery Road. The plans also show an indicative location for a cycle/pedestrian connection through the site and indicative location for bus stops along Cemetery Road.
5. The subdivision would be staged with the first stages over the northern site and the southern site developed later. The applicants estimate a 10 to 15-year timeframe for the completion of the development.

The further amended concept plan

1. On the third day of the hearing the applicants sought leave to further amend the application in accordance with a plan that was said to reflect various recommendations made by the experts through the joint conferencing. The Council opposed leave being granted at such a late stage and submitted that further assessment of the changes would be required, and inadequate details were provided to facilitate consideration of the amendments.
2. I accepted the Council's submission and did not grant leave to amend. In addition, Ms Reid, for the Council, was unable to ascertain the formal views of the Council in relation to accepting dedication of the proposed environmental corridor, particularly in the absence of information on how this was to be developed and the long-term maintenance responsibilities associated with it. I did however accept tender of the plans as various aspects contained in them had been discussed by various experts during the hearing. The concept plan is Exhibit G.
3. That plan reduces the number of lots to 119 in the northern parcel and 147 in the southern portion. No change has been made to the drainage reserves however, all those lots that backed onto Cemetery Road have been deleted and the area shown as a public reserve with a notation "Sloane's Froglet corridor constructed and dedicated to Council in Stage 1. To the west of the reserve is a 10m wide strip that appears to coincide with the road widening indicated on the Council's strategic plan." It is unclear whether this is to be dedicated to the Council and at what stage this would occur or if the applicants are seeking payment for the land.
4. Other changes made are the provision of shared pathways both through the Reserve to be developed as the corridor and linking the various roads within the subdivision to provide connections to the residential areas to the east. The road pattern has been amended to remove the direct north south link along Chisnall Street and the area of the proposed northern reserve increased from 3450m2 to 3938m2.
5. The southern road network has also been changed to remove the vehicular through link along Barber Street and provide a pedestrian reserve link in that location. An additional shared pathway from Cemetery Road through the corridor and subdivision to link to the eastern most road and the northern reserve that links to the existing reserve in Katrina Circuit is also provided.
6. The plans still indicate the extent of roadworks within Cemetery Road including the provision of parking bays and indicative location of bus stops, however there is a note that the upgrade of Cemetery Road is to be the subject of a separate development application.
7. Mr Hemmings submitted that the Exhibit G plans are worthy of consent and could be conditioned to address the contentions in the case.

The Voluntary Planning Agreement

1. In a letter to the Council dated 26 August 2021, the applicants offered to enter into a VPA as part of the application. The offer proposes that the applicants deliver by way of works in kind, construction of water infrastructure in a staged manner, the first stage involving construction of a 300mm diameter trunk main from the existing trunk main that ends at No. 144 Redlands Road to the intersection of Cemetery Road, the timing for that work being prior to issue of the subdivision certificate for Stage 1. Further amplification of trunk lines would occur prior to release of Stages 7, 8 and 12.
2. The offer also includes the construction of necessary sewer reticulation infrastructure to service the development. The applicants estimate the current system has capacity for an additional 67 lots or the first three stages however in order to develop additional lots, mechanical and electrical upgrades will be required. The offer is to replace the existing sewer pumps to increase flow rate providing an additional capacity for 160 lots and that work would be carried out prior to issue of subdivision certificate for Stage 4.
3. More significant upgrading for the remainder of the allotments is required; the applicants estimating the works having a value of $2.8 million excluding GST. The offer states the owner is willing to meet with the Council to refine the scope and detail of the proposed works and confirm an estimated value of delivery however should it become apparent in discussions with Council that some or all of the works are not feasible or the works cannot be carried out within a reasonable cost by the applicants or Council requires a standard of works beyond what is proposed by the owner, the equivalent value as outlined would be paid via a monetary contribution instead.
4. A monetary contribution of $600,000 excluding GST to be payable prior to the issue of subdivision certificate for Stage 1 to enable Council to undertake upgrade works to the Corowa sewage treatment plant is also included.
5. The VPA does not include any provision for the upgrading of roads external to the subdivision, the embellishment of public reserves, dedication of land required for road widening, acquisition of land required to extend infrastructure or any environmental works or management necessary to ensure protection of threatened species.
6. The Council considered the VPA offer at its meeting held on 28 September 2021 when it resolved to decline the offer as it considered the financial risks associated cannot be adequately defined and therefore the offer was not considered to be in the public interest.
7. Of particular concern to the Council was the lack of certainty in terms of the offer and that the following matters were not included as part of the application and for which no payment was proposed by the applicant: "• Facilities to be provided in the open spaces • Upgrades to Cemetery Road, Redlands Road, Tower Street and amendments to Barber Street. • Costs associated with the studies and approvals and awarding of contracts with the upgrade works to Council infrastructure, notably the Sewerage Treatment Plant, Cemetery Road upgrade and the augmentation of water and sewerage works. • Augmentation to sewerage infrastructure • Augmentation to water infrastructure • Upgrade to Inlet works at Corowa Sewerage Treatment plant • Management, monitoring of the impact of the development or any offset provisions of on the Environmental Impacts of the Development. • Management of the Buffer area • Land Acquisition for Sloane's Froglet Buffer area and infrastructure provisions on Lot 1A, DP 2840, Lot 2, DP 121483."

Planning controls

1. The site is zoned R2 Low Density Residential pursuant to the provisions of the Corowa Local Environmental Plan 2012 (LEP). Clause 2.3(2) requires the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone 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.
2. Clause 2.6 requires consent for subdivision and cl 2.7 requires consent for demolition.
3. A minimum lot size of 550m2 is the development standard set pursuant to the provisions of cl 4.1 of the LEP.
4. Clause 7.1 of the LEP requires consent for Earthworks and lists a number of matters that the consent authority must consider before granting consent. Those are: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
5. The Council contends that insufficient information has been provided to ensure these matters are met.
6. Clause 7.3 Stormwater requires the consent authority, before consent can be granted, to be satisfied that the development - (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.
7. The Council submits that insufficient information has been provided on the manner of treatment of stormwater.
8. Clause 7.4 of the LEP applies to Terrestrial biodiversity with the objective of maintaining biodiversity by: (a) protecting native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the conservation and recovery of native fauna and flora and their habitats.
9. Before determining a development application, the consent authority must consider: (a) whether the development is likely to have - (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
10. Whilst neither parcel of land to which the application relates is identified as "Biodiversity" on the Terrestrial Biodiversity Map that associates with the clause, some of the necessary infrastructure for later stages of the subdivision would run along Nixon Street, to the south of the site and that area is within the mapped area.
11. Clause 7.5 of the LEP applies to land identified as "Wetland" on the Wetlands Map. Before determining a development application, the consent authority must consider - (a) whether or not the development is likely to have any significant adverse impact on the following - (i) the condition and significance of the existing native fauna and flora on the land, (ii) the provision and quality of habitats on the land for indigenous and migratory species, (iii) the surface and groundwater characteristics of the land, including water quality, natural water flows and salinity, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
12. Neither parcel is mapped as wetland however the infrastructure that will be required along Nixon Street may, depending on design, impact on the wetland in Nixon Street. The design of infrastructure along that road has not been carried out.
13. Clause 7.9 of the LEP states that development consent must not be granted unless the consent authority is satisfied that any of the following services that are essential for the 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.
14. The Corowa Shire Development Control Plan 2013 (DCP) applies to the site with Part 2 - Residential Development, Part 6 - Strategic Land Use Plan, Part 9 - Vegetation Removal and Part 13 - Site Specific Development most relevant to the contentions in the case.
15. The objectives for residential development are: • to encourage development that is energy efficient; • to encourage residential buildings that offer visual interest and variety in their appearance and style; • to encourage developments that provide high quality and well-designed landscaping where visible from the public domain; • to ensure that new development is consistent and compatible with the established form in the neighbourhood; • to ensure residential development within a low density or rural is complementary and in harmony with the natural surrounds; and • to ensure that all development takes account of the amenity of adjoining and surrounding land with respect to sunlight, views, privacy and convince and safety.
16. The development standards are grouped under different components of residential development. Within each component there are general development standards that relate to all types of proposals as well as specific development standards for specific types of residential development low density residential development is defined as being generally but not exclusively single detached dwellings within the Low Density Residential R2 zone. There are also provisions described as average density being generally one or two single detached dwellings located on conventional urban size lots within the R1 and RU5 zones.
17. For subdivision, the DCP has objectives to provide lots with areas and dimensions that enable the appropriate siting and construction of a dwelling, solar access, private open space, vehicle access and parking, water management, easements and the retention of significant vegetation and site features. It calls for compliance with Council's Design Manual for the Subdivision of Land in regard to road layout, road pavement, subsurface drainage, stormwater drainage, site works e.g. cut and fill, soil and water management e.g. erosion, cycleway and pedestrian paths, water reticulation and sewerage system.
18. Part 2.17 has standards for lot widths for "average" (15m minimum at building line where slope is less than 12%) and requires a minimum of 70% of allotments to have favourable northern orientation as per the figure included in the clause. The Council contends these provisions apply to the site whereas the applicants submit the controls only apply to the R1 and RU5 zones.
19. Part 9 Vegetation Removal is read in conjunction with the now repealed cll 5.9 and 5.9AA of the LEP and require consent for the removal of a number of tree species including River Red Gum and Yellow Box.
20. Part 13 of the DCP contains site specific development controls with a map detailing an indicative subdivision layout for that land on the western side of Cemetery Road between Redlands Road and the southern boundary of the site. Where there is an inconsistency between this section and any other part or section of the DCP, the requirements of Part 13 prevail.
21. Clause 7 of State Environmental Planning Policy No 55 - Remediation of Land requires that the consent authority must be satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. The applicants have prepared a Preliminary Site Investigation, the findings of which conclude that a Detailed Site Investigation is not necessary, and the land is suitable for the proposed development subject to conditions. Those conditions related to an unexpected finds protocol, waste classification and fill specifications and have been incorporated into the draft conditions of consent.
22. Clause 104 of State Environmental Planning Policy (Infrastructure) 2007 requires subdivisions of more than 200 lots to be referred to Transport for NSW (TfNSW) and for the consent authority to take into consideration any response received and consider the accessibility of the site concerned, including the efficiency of movement of people and freight to and from the site; the extent of multi-purpose trips, and the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail and any potential traffic safety, road congestion or parking implications of the development.
23. The response from TfNSW is provided in the Council's Bundle of Documents, Exhibit 2 and TfNSW did not raise any objection to the application.
24. State Environmental Planning Policy (Koala Habitat Protection) 2021 also applies to the site. As Federation Council does not have a Koala Plan of Management for its local government area, cl 11 applies to land with an area of at least 1ha and requires assessment of whether the development is likely to have any impact on koalas or koala habitat.
25. A Koala Assessment Report has been prepared and concludes, given the lack of habitat on and adjacent to the site, that the proposed development will have no impact on koalas.

The contentions

1. The contentions in this case are: 1. the proposed layout will result in a poor urban design outcome and will not provide sufficient amenity for its intended occupants; 2. adequate arrangements for the provision of essential services have not been made; 3. insufficient environmental impact assessment has been conducted with regard to significantly affected threatened species pursuant to Pt 7 of the Biodiversity Conservation Act 2016, in particular, the Sloane's Froglet and vegetation within the road reserve; 4. insufficient information has been provided to establish the suitability of proposed earthworks; 5. insufficient information has been provided to assess the suitability of proposed stormwater design and disposal; 6. the proposed development does not adequately address the potential social and economic impacts as a result of the design and density of residential development proposed; 7. the proposal is not in the public interest; and 8. inadequate information has been received to assess the traffic impacts of the proposal.

The evidence

1. Due to COVID-19 travel restrictions, it was not possible for the Court to conduct a site view. The parties provided both photographs and videos of the area to assist the Court understand the context of the site. In addition, it was agreed that the use of Google Maps would also assist in understanding the locality.
2. Evidence was heard from a number of objectors to the proposed subdivision. The issues raised are summarised as follows:

• Concern regarding water quality impacts;
• Impact on the Sloane's Froglet habitat;
• Poor urban design and social impacts;
• Density is higher and lots smaller than envisaged under the DCP plans, there is a lack of lot diversity and proposal is out of character with Corowa;
• No works proposed within the land to be dedicated as public reserves;
• No details of the design of the proposed drainage reserves, could provide great amenity if properly designed;
• Poor social outcomes;
• Traffic issues associated with underestimation of traffic routes, adverse impact on Chisnall Street;
• Stormwater analysis used data from Cobram which has 15% less rainfall than Corowa so concerned about adequacy of stormwater design and potential for downstream impacts including to the Murray River; and
• Sewerage Treatment Plant (STP) does not have the capacity to service the subdivision.

1. Expert evidence was heard from the following: Applicant Council Social Planning Allison Heller Alison McCabe Traffic/Transport Damien Hancox Jason Rudd Ecology John Travers Dr David Robertson Ecology Corey Mead Dr Alexandra Knight Town Planning David Hunter Alison McCabe Engineering Matthew Sammon Scott Donders

Social planning

1. The social planning experts agree that the contention regarding social and economic impact principally relates to the diversity of lots and the subdivision's potential impact on local character and sense of place. It is principally an urban design issue which is being addressed by other experts.
2. They agree that a diversity in lots can provide different price points for future residents and that smaller lots in and of themselves do not necessarily result in negative social impacts on local communities, pertaining to sense of place and local character. However, it is how a subdivision is designed and ultimately delivered that will determine at the degree of social impacts.
3. They consider the response outlined in the Social Impact Statement (SIS) prepared with the development application and shown in Table 5 of that document (tab 20, Exhibit B) need to be addressed. These include but are not limited to design considerations that enhance the permeability of the site; high quality design of the built form and landscape elements and management of construction impacts.
4. They also agree that the quality of design and delivery of development including the quality of the future built form and natural landscape elements will ultimately determine the development's impact on the surrounding and built environment and its aesthetic amenity value for local communities. The look and feel of a place has social impacts on communities through their connection to the place, sense of belonging, and the amenity and wellbeing value they derive from this.
5. Ms McCabe does not consider the recommendations made in the SIS have been addressed. While principally character and urban design related, the documents are necessary to mitigate broader social impacts and assess the impact of development on the character of the broader area. Ms Heller says the impacts on local character of the area and associated community, or social impacts will depend on how the development is ultimately designed and delivered rather than on the subdivision pattern particularly the lot size or layout.
6. They also note that the medium to longer-term impacts of COVID-19 on the populations of regional areas is, as yet, unknown. Whilst there is current evidence of increased migration from cities such as Sydney and Melbourne to regional areas, driven by a combination of factors including seeking non-urban lifestyles, more affordable housing and the potential for office workers to work from home opening up opportunities to live beyond commuting distance of CBD based offices, whether these choices continue ongoing, remains to be seen. Therefore, whether the population forecasts for Corowa, which presently suggest a decline, eventuate also remains to be seen.
7. They agree that the economic impact assessment addressing the matters in the SIS has not been provided. This economic information would be used to identify the likely demand for, and take up of, lots from a market perspective, as well as the potential timing for development. This would potentially inform the additional need for services and timing for delivery of those. They agree that the number of lots proposed will result in a significant change to the Township of Corowa. Given the scale of this development, this information and the cumulative impact of the subdivision and other subdivisions is information that should be lodged as part of the application. That is because they say social impact assessment is an important tool in managing change in their community.
8. Ms McCabe understands the current figures show potential population decline but notes the possible change due to COVID-19. Ms Heller says that the development is not likely to result in additional demand for services over the 10 to 15-year projected development timeframe given the likely decline in population of the town.
9. In cross-examination, both experts agreed that the provision of additional pedestrian paths and cycleways would provide better access and permeability and positive benefits to the proposed community of the subdivision. In addition, landscaping would enhance the development particularly use of native vegetation within footpath areas and open space areas.
10. Ms McCabe says the proposal should include a landscape master plan and indicate the treatment of both public and private domain areas. It is not something she says should be left to a condition of consent but should be part of the upfront development application proposal.
11. Ms McCabe estimated the funding the Council would collect from the subdivision pursuant to the provisions of s 7.12 of the EPA Act would be in the vicinity of $200,000. A copy of the Council's Contributions Plan was provided (Exhibit 21).
12. The Court notes that the funds collected under this Plan could not be used to embellish the reserves to be dedicated to the Council or any other works associated with the proposed subdivision. The only funding to be spent within the Corowa area under the provisions of the Plan is an upgrade to the Corowa Aerodrome runway, the upgrading to access and facilities at the Bowling Club, Oddfellows and Memorial Halls, a retaining wall at the Corowa Boat Shed, construction of part of the Corowa Mulwala Trail, provision of a watering system to John Foord Oval, replacement of a Tennis Shelter Shed at Morris Park, drainage improvements and intersection upgrade in Redlands Road and Guy Street.
13. For this reason, the costs of any works within the subdivision itself would need to be incurred by the developer or the Council would need to include funding in its Management Plan. No evidence of the latter has been provided so the works would need to form part of the proposal.

Traffic

1. The traffic experts prepared two reports, the initial Joint Report, Exhibit 5 and a Supplementary Joint Report, Exhibit 23. The latter report was prepared to address traffic and transport matters raised in objector's evidence.
2. The experts agreed that while the proposed street layout was not consistent with the DCP, it represents an appropriate grid-based street layout and provides suitable connections to the surrounding lots and existing road network. They agree that a posted speed limit of 60k/hour should be implemented along Redlands Road extending from the existing 60k/hour section near the school to the east of the intersection with Cemetery Road. With that environment, the intersection treatment of the northern site's subdivision road with Redlands Road is appropriate. They also agree that for the northern site, there is potential for vehicle rat-running through the site along the proposed eastern most north south local access road connecting Redlands Road to Tower Street. This could be addressed with the removal of a single section of the road as detailed in Figure 1 of their Joint Report, Exhibit 5.
3. They also agree the proposal does not provide sufficient cycle paths and east west pedestrian linkages and have again suggested the provision of pedestrian paths on both sides of each street within the proposed subdivision; the provision of a 2.5 metre wide minimum shared way along the northern site's frontage to Redlands Road, the northern site and the southern site's frontage to Cemetery Road and an east west pedestrian link through the northern site running from Cemetery Road to the proposed central north south road through the subdivision to create a connection via the internal east west subdivision road to the reserve and potentially through to adjacent land to the east of the site.
4. They also recommend a further east west pedestrian link through the southern site should be provided with a pedestrian connection through the proposed reserve in the north-eastern corner of the site to facilitate the pedestrian link between the site and Katrina Circuit to the east. They recommend the location of the proposed bus stops on Cemetery Road are modified such that they are located within close proximity to where the east west pedestrian connection through both the southern and northern sites connects to Cemetery Road.
5. In relation to the future design and upgrade of Cemetery Road to accommodate the proposed development, they agree the contention specifically relates to that design accommodating the expectation of retaining all, or to the greatest extent possible, the existing mature trees and vegetation along the roadside of Cemetery Road. They agree that the appropriate future design for Cemetery Road is a local distributor road as detailed in the Council's Engineering Guidelines for Subdivision and Development Standards Manual (Engineering Guidelines). That road would have a minimum 30 metre road reserve, a sealed kerb to kerb width of 13 metres accommodating 2 travel lanes and kerbside parking on both sides of the road to fully comply. They agree that typical features along Cemetery Road could be varied so that the existing mature trees can potentially be retained however, the ability to retain those trees is subject to the trees' location relative to the works required within the reserve and full details of tree locations have not been provided by way of survey.
6. The experts agree along the frontage of both the northern and southern sites to Cemetery Road that the cross-sections shall have the following features:

• the future centerline of the road shall be retained in the existing centerline position. This is required such that future development potential, services and trees on the western side of Cemetery Road can be maintained as the existing conditions and envisaged planned outcomes;
• a minimum 8 metre-wide carriage way is required comprising 2 x 4 metre traffic lanes;
• the 2.5 metre-wide parking lane is not necessary along the eastern side of the road;
• the width set aside for a parking lane in a typical cross-section can be provided as verge areas within the vicinity of the existing mature trees as a measure to potentially retain the existing trees;
• for safety reasons, if trees are to be retained then they shall be set back from the kerb line at the following minimum distances: for 60k/hour speed limit 1.5 metres or three metres in the case of an 80k/hour speed limit;
• the desirable future speed limit for Cemetery Road is 60k/hour;
• where tree retention is not required or not possible then 1 parking lane shall be provided with a width of 2.5 metres. This parking lane could be utilised for bus stops as identified; and
• the required footpath shall be provided within the road reserved between the existing trees and property boundaries for proposed lots in the northern and southern sites.

1. The experts' review of the latest traffic data submitted with the application resulted in the following areas of agreement:

• the surrounding road network can satisfactorily accommodate the potential traffic generation of the proposed development of the northern and southern sites;
• the proposed subdivision road layout as amended in the recommendations above will provide satisfactory road connection to these surrounding road network such that site generated traffic can be efficiently and effectively distributed to the surrounding road network;
• satisfactory site servicing arrangements can be implemented within the road widths proposed;
• consideration should be given by Council to installing a centre road median in Tower Street on the approach to the Tower Street/Hay Street intersection to reduce the potential vehicle speeds turning at the intersection; and
• the provision of bus stops, footpaths and road geometry requirements for Cemetery Road upgrades outlined above.

1. Having regard to the issues raised by an objector to the proposal, the experts agree that further amendment to the internal road network to address potential rat running through the site and into Chisnall Street should be made. They agreed that provision for a road connection to the residential area to the east of the site be made within the northern section of the site and that bus stops along Cemetery Road be relocated and link to the east west pedestrian links.
2. They also agree that traffic generation could be as high as 40% onto Chisnall Street and therefore recommend that not allowing vehicle access through the western end of Barber Street into the southern site will reduce the convenience and attractiveness of Chisnall Street in preference for access by Cemetery Road, thus reducing the number of lots from the southern site that will be effectively serviced by Chisnall Street to less than the 100 lots as envisaged by the DCP.
3. They supported the traffic data and conclusions all the traffic generation rates of the proposed subdivision modelled by the applicants' consultant having regard to the location of the site in a rural area rather than a metropolitan location.
4. All of the recommendations of the Traffic experts have been incorporated into the plans that form Exhibit G however, the survey details and road designs have not. The plans before the Court do not incorporate any of these details.
5. When asked what external road works would be required to support the proposed subdivision, it was agreed the following should be carried out:

• Extend Redlands Road as per the current conditions further to the east to Cemetery Road.
• Full length, road construction along Cemetery Road absent the western parking.
• Extend Tower Street in accordance with the existing cross sections to Cemetery Road.
• Construct the median at the Tower/Hay Street intersection.

1. Mr Hancox said the timing of the works to the east should be a connection to Tower Street at Stage 1 and the works along Cemetery Road as the internal roads are connected.

Ecology

1. The joint report of the ecologists, Exhibit 6, had been prepared on the basis of the proposed development including development of residential allotments and roads within the northern and southern properties, road widening along Cemetery Road, construction of sewage treatment infrastructure to existing council infrastructure and installation of water pipelines along road corridors to existing Council infrastructure.
2. They note that there is potentially significant flora and fauna values on roadside reserves beside the site. These include roadside occurrences of mature, native trees of yellow box and river red gum and habitats for the Sloane's Froglet which is listed as vulnerable on the NSW Biodiversity Conservation Act 2016 and endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.
3. All experts agree that Sloane's Froglet does occur on the subject land in the channel on the southern edge of the southern portion and in the nearby wetland on the corner of Nixon Road and Cemetery Road. There is also a drain that runs along the southern side of the southern lot and a farm dam in the northern lot that can afford habitat for the Froglet. Mr Travers does not agree that the habitat for Sloane's Froglet occurs in the north south oriented 'road-side drain' located in Cemetery Road on both sides. Neither Mr Travers nor Mr Mead agree that habitat for the Froglet occurs within the farm dam in the northern development lots. Mr Mead recognises the potential for roadside drains to provide breeding and dispersal habit for Sloane's Froglet however during his survey and habitat assessment of that roadside drainage along Cemetery Road the land was completely dry over the 2021 breeding season and therefore he says you cannot assume that it would provide habitat of any value for breeding or dispersal.
4. The experts agreed that the documentation provided with the development application was deficient in several respects including the impact assessment for Sloane's Froglet, the lack of information on how many trees were to be cleared or otherwise impacted, whether a Biodiversity Development Assessment Report (BDAR) was required for the proposed development and what mitigation measures were proposed to protect Sloane's Froglet habitat and the roadside trees.
5. The experts disagree about the impacts of the proposal on the Sloane's Froglet and roadside vegetation. Dr Robertson and Dr Knight believe that there is likely to be a significant impact on Sloane's Froglet and that a BDAR is required. Dr Robertson questions the accuracy of the original Hamilton report lodged with the application and believes the information concerning roadside vegetation is inadequate in terms of baseline data and descriptive information and impact. Both Drs Knight and Robertson formed the view that the information submitted with the development application was inadequate to properly assess the impacts upon the Froglet and roadside trees.
6. Dr Knight prepared a Test of Significance for the Sloane's Froglet (Attachment F, Exhibit 6). That report concludes the development will remove and modify known habitat on and near to the subject site (killing any Sloane's Froglets adults and tadpoles present) and is likely to alter habitat on the nearby important wetlands in the study area. The development has the potential to isolate and fragment Sloane's Froglet populations. Dr Knight concludes the development will both threaten the local population with extinction and fragment habitat of the local population. Accordingly, she says a significant impact is likely and a BDAR should be prepared to fully assess the impacts of the proposed development and to better inform avoidance and mitigation options.
7. Mr Travis and Mr Mead prepared further information in addition to the original development application. Mr Mead prepared his own Test of Significance for Sloane's Froglet and Mr Travers preferred a further assessment of significance for roadside vegetation. Mr Mead and Mr Travers conclude that following a review of plans of the proposal and available habitat no significant impact is likely on either Sloane's Froglet or roadside vegetation. Mr Travers also says a BDAR is not required.
8. The experts discussed potential avoidance and mitigation measures for their development which included measures to lessen or avoid road widening of Cemetery Road and under boring or minimal disturbance of the wetland at the corner of Cemetery Road and Nixon Street, the protection and enhancement of the drain along the southern side of the southern site and incorporation of a buffer between the residential development and the channel as well as preparation of a biodiversity management plan to provide for the management of the channel and tree-lined road frontages as the development takes place.
9. It was concluded that the buffer width depended upon a number of factors including stormwater management measures, measures to enhance channel habitat etc with Mr Travis and Mr Mead recommending the incorporation of a 40 metre setback along the entire western boundary of both the northern and southern development areas to provide greater opportunity for north-south froglet dispersal. This will improve direct connectivity between recorded habitat locations to the north, south and in between the two proposed development footprints. They recommended a range of stormwater design measures, revegetation of the swale, preparation of a biodiversity management plan to provide for the management of the channel and tree-lined road frontages, relocation of two of the four bus stops and limitation of the extent of car parking along Cemetery Road.
10. Drs Robertson and Knight have considered these recommendations and Dr Robertson says these measures, if adopted, would be of environmental benefit however, such measures should have been conceptualised and illustrated on plans as part of the development application. As well as a lack of engineering plans, and other such design information to illustrate how impacts to the Froglet and roadside trees will be avoided and mitigated, there is no management plan for flora and fauna. Such a plan would set out, in detail, areas to be conserved and avoided, measures to manage such areas preconstruction, measures to manage such areas in the long-term post-construction, funding arrangements, responsibilities, covenant details for conservation areas. Future management of retained habitat for the froglet will be important if the species is to be retained in the long-term. Without active management, the species is likely to disappear as a result of indirect impacts from the development and from residents who occupy the land.
11. Dr Knight's principal focus is on the southern portions of the site and in particular, the potential for impacts on the Nixon Street wetlands. She says there is too much uncertainty about the nature of the development and any proposed amelioration measures to presume that the impact of the development will be insignificant. She also says that a full hydraulic analysis of stormwater is required, and that water depth is a critical factor in the design of any mitigation measure.
12. Dr Robertson considers the lack of detail in relation to the design of the drain within the road verge, the need for potential cut-outs in the kerb where stormwater enters the drain, the lack of detail regarding management of the channel and the impacts of road widening or pipelines not being assessed, all demonstrate that inadequate information has been provided to allow proper assessment of the impact of their proposal on the Sloane's Froglet. If a BDAR was to be prepared, the commitments to mitigation measures would be required to be described in detail and unambiguously committed to.
13. Dr Robertson agreed that the 40 metre wide reserve could ensure any aspect of the development is designed to be kept away from the tree protection zones (TPZ) of the significant trees along Cemetery Road as would the relocation of the footpaths and bike paths to within that reserve. He remained concerned about the design of the drainage and kerb and guttering within that reserve, the potential for impact on the root systems of the trees and the impact on the water currently being delivered to the trees. He did accept that it may be possible to offset the loss of the trees by way of payment of environmental credits.
14. No assessment of the proposed subdivision of the trees in Redlands Road had been carried out. Mr Travers did not include these trees in his Test of Significance.
15. The experts also disagreed on which Endangered Ecological Community (EEC) the trees belonged however, it was finally agreed that this would only become an issue if the removal of the trees were proposed and would need to be determined in assessing the credits to be retired. It was concluded the trees would either belong to the Box Gum Woodland or the Inland Grey Box Woodland.

Planning and Engineering

1. With regard to the contention of poor urban design and amenity, the experts agree the proposed lot sizes comply with the minimum lot size required in the R2 Low Density Residential zone and the minimum widths comply with the minimum width requirement at section 2.7(2) of the DCP. Appendix A to the DCP does not detail exact lot sizes in the site-specific development plan applicable to the site and therefore the experts have interrogated the lot sizes by shape and proportion. The following table provides a breakdown of the number of lots within the range is proposed:
2. Ms McCabe says the proposed development in the context of the Corowa Township will result in significant change to the town given the number of lots proposed. She notes the DCP provides very little guidance in respect to urban design or establishment of guiding principles to inform a subdivision layout. Whilst the site-specific development plan is provided, there is no background information or guiding principles informing how the lot layout was determined or what the character of the neighbourhood that such a land release would result in.
3. For that reason, she says the absence of controls means that it is appropriate to consider other documents that provide specific guidance and cites the Urban Design for Regional NSW publication as a starting point for development of this scale. She says a subdivision of this nature needs to be informed by a considered urban design analysis and a recognition of the constraints and opportunities of the site. Such an approach to subdivision design has not been articulated or reflected in the lot layout. The appropriate approach is that development responds to local character and uses landscaping to inform siting. In greenfield areas, this means identify elements or guiding principles that will define the character and this has not occurred. There is an absence of a basic site analysis of constraints.
4. Ms McCabe says that whilst there is some diversity in the lots proposed and the lot sizes comply with the LEP development standard, the layout does not reflect the intent of the site-specific development plan for a number of larger lots. The difference in anticipated lot yield is evidence of this with the DCP plan yielding 226 lots where 306 are proposed. It is relevant to consider the character of the immediately adjoining subdivisions to the east. Subdivisions around Chisnall Street support lots of 775m2 where the subdivision pattern around Katrina Circuit supports lots between 700 and 950m2 with a medium of 700m2. Ramsey Street supports similar sized lot. For this development to respond to the character of the surrounding area, a greater number of lots between 750 to 950m2 is required. If the subdivision layout had better accommodated east west pedestrian linkages, responded to the ecological constraints and retained some of the existing vegetation on the site, this would have resulted in greater diversity.
5. She says any variations and departures to the DCP layout plan should be supported by an urban design analysis however she accepts the general grid layout pattern proposed is acceptable. However, there are inappropriately designed lots at street ends resulting in poor solar access. Whilst it may be possible for different types of project homes to be constructed on these squarer lot proportions, it is likely to result in conflicts between living and bedroom areas and the orientation of living areas to side boundaries which is not a common practice. The configuration of lots results in a need for a greater degree of control and guidance for future dwellings to minimise impact which has not been provided. Because the lot layout proposed in any subdivision proposal will influence the character of the area, this is a key element in determining the ease for which future dwellings with good solar access can be erected on the site. This is not evident in the current proposal.
6. Ms McCabe said there is no information to establish the relationship of lots to each other. Given the east-west orientation of a significant percentage of lots, it is important to understand whether there are any significant or any level differences, as elevated levels to the north could mean that solar access will potentially be further compromised. It is not clear what the boundary condition at the interface of the lands not part of this development is. It is important to understand level differences and proposed structures, to assess whether the impacts of the development are reasonable. In this regard, the presentation to Cemetery Road and the amenity of the streetscape is an important consideration. The proposed presentation to Cemetery Road is one of the back fences resulting in a poor streetscape. Greater detail and landscape solutions are required, and this is not a conditional matter.
7. There are no details of what the drainage basins relationship to the remainder of the lots look like and this is particularly important as both drainage basins are located at a highly visible entry points to town. The resultant landscape outcome will contribute to the character and amenity of the new neighbourhood. The acceptability of what is proposed cannot be assessed, as an example it is not clear whether a fence will be needed and, if required, what it will look like. No information has been provided in regard to finished levels and how existing contours may be altered as a result of earthworks required as part of the development. While she acknowledges that the land is not severely sloped, there is the potential need for earthworks across the site for road and service provision.
8. Ms McCabe says the length of blocks in both sites require additional east-west links to improve pedestrian and cycle connectivity to promote walking and cycling. Such linkages have not been identified and result in poor connectivity within the subdivision. It is not sufficient to refer to pathways on higher order roads. Pedestrian and cycle networks need to be integrated with existing neighbourhoods and destinations such as schools and be located so that they are safe for children to use.
9. Ms McCabe says the proposal has not adequately demonstrated or integrated potential for the Sloane's Froglet habitat into the subdivision design and the lack of detail at the interface of lots 136 to 148 on the southern side and the proposed drainage basin does not allow an adequate assessment of impacts. These lots and drainage basins need to be reviewed to provide for a green link along the southern boundary to reinforce a biodiversity corridor by establishing new green connections between new and existing open spaces. There has been no consideration of the retention of the only stand of trees actually on the site or how this may be accommodated. This is particularly important given that the area is generally devoid of vegetation. The proposal also fails to identify how green infrastructure will be embedded as a network within the subdivision design. Such infrastructure comprises a network of green spaces, natural systems and semi natural systems and contributes to the amenity of the neighbourhood and assist in adapting and mitigating the effect of climate change.
10. Whilst the DCP provides no guidance on the amount of open space that should be incorporated in the proposal, Ms McCabe says historically open space has been provided on the basis of 2.3 hectares per thousand people with the suggested minimum size of a local park between 5000 and 7000m2. The proposed subdivision includes 2 parks less than 5000m2 within 400 metres of most homes. It is noted that the site-specific plan includes 3 local parks. Based on an average dwelling size of 2.3 persons per household, 1.99 hectares of open space would be required. The SIS recommends responses to mitigate the social impacts of the development with one mitigation measure stating: "high quality design of the built form and landscape elements will integrate with the development with its surround and make a positive contribution to the character of the locality. Good design and landscaping can help to ensure that the density of the development does not have a detrimental impact on the local character and communities' 'sense of place'".
11. Because the proposed development seeks to depart from the DCP layout, does not appear to provide open space in accordance with adopted benchmarks, has not accommodated landscape elements or green infrastructure necessary to establish a neighbourhood character that delivers good amenity, or is responsive to site constraints and climate, the proposal does not demonstrate how it addresses those recommendations or demonstrate how vegetation and tree cover can be provided.
12. Mr Hunter says the layout presented in these DCP site specific plan does not represent a good urban design outcome as there is minimal permeability, particularly in an east west direction, a large number of cul-de-sac streets, a number of irregular shape lots, poorly defined reserve areas and lack of integration to existing development. The proposed subdivision layout provides for a grid network and does not include any cul-de-sac streets, which provides for good permeability. Shown in context to the surrounding areas of existing development, that proposed street network will integrate with the existing network.
13. Given the grid pattern of development, proposed lots are generally rectangular and square in shape which provides more efficient area for future dwellings and encourages consistency. The northern development site includes a large public open space reserve of 3450m2 and is aligned to road frontages on three sides. It is located close along a main north south road through the development to ensure that it forms a prominent and accessible component. The internal road network includes a north south and east west road network to facilitate accessibility from all lots within the development. Provision has been made for future development of adjoining land improving accessibility to open space which appears to be limited to the east.
14. Mr Hunter says the southern development site includes another large public open space reserve of 3419m2 which is positioned generally as recommended by the DCP and will adjoin land which has previously being set aside and developed for the purposes of public open space. He considers the plans demonstrate principles of good urban design to the extent that there is justification for a departure from the DCP plan, particularly in the absence of prescriptive controls in the DCP. He notes land to the west beyond Cemetery Road and surrounding the cemetery is also zoned for residential purposes and transitions to a minimum lot size of 1 hectare therefore, the development does not represent the limit of urban development in Corowa.
15. Mr Hunter notes the lots comply with both the minimum lot size under the LEP and minimum lot width of the DCP and says diversity of lots in a development can be determined by a number of factors, including size, shape, orientation and dimensions. All lots exceed the minimum lot size for the land with the range between 550m2 to 949m2, and all are generally rectangular with widths ranging from 15 to 28 metres. The variations to lot depth range from 22 to 45 metres with the majority within the range of 30 to 45 metres. Lots of smaller depths generally have wider frontages then the minimum standard. Whilst there are a number of square-shaped lots included in the layout, such lots should not compromise the majority however with appropriate alignment and design these will contribute to variation in future dwelling forms.
16. He says he proposed subdivision pattern, being derived from a grid pattern of streets, is a good urban design outcome and means the lots can comprise a more efficient shape rather than containing irregular boundaries or shapes. He also notes that all lots fall within the favourable northern orientation as per the DCP diagram.
17. Mr Hunter interprets the interfaces to existing Redlands Road, Tower Street and Barber Street to be defined by either a lot frontage or side boundary to a lot and based on the existing contours represented on the plans, he says there does not appear to be significant changes in grade at those interfaces.
18. The interface of the development to Cemetery Road will be defined by rear lot boundaries, buffered by a large setback. The plan demonstrates that the intention is to retain existing trees along this frontage, with a short setback including a pathway to the rear lot boundaries which provides separation to the road and an opportunity for a green corridor. He agrees that the interface at the lot boundaries to Cemetery Road is not known, however there is some conceptual detail of this interface that can be drawn from the submitted plans. Given the nature of Cemetery Road, it is preferable that access not be provided at this frontage, so a larger landscaped setback and suitable fencing treatment is considered appropriate and could be addressed through conditions of consent that requires specific fencing treatments at this frontage.
19. Mr Hunter said the drainage reserves are positioned at the corners of both the northern and southern parcels and whilst level details are conceptual only, they do appear to indicate the intention for constructed basins surrounded by landscaping. He understands the intention is to retain existing vegetation surrounding those locations. He also considers the interface response along eastern boundaries of the development to be appropriate. In the north, the proposed lots will provide rear lot boundaries to adjoining land which is likely to be developed for similar infill subdivision with a small road reserve opening proposed to ensure a future east west road connection to that land. To the south, the common interface is already defined by rear lot boundaries of adjoining development however at the north-eastern corner, the proposal includes a reserve which provides integration to the existing reserve areas and creates the large space for recreation purposes. The internal lot interfaces would be expected to comprise solid fencing, typical of the existing urban areas of Corowa and he notes there does not appear to be substantial level differences between the proposed lots.
20. Mr Hunter says the grid network of streets for the development is a more preferable urban design outcome and creates varied street blocks, dimensions of appropriate proportions and edges to open spaces and desire lines from proposed lots to those open space areas. It also provides a greater opportunity in the northern development to integrate with future development to the east. The southern development is predominantly north south aligned streets with east west streets at either end reflecting the DCP plan by providing desired access points to Cemetery Road. He considers permeability and connectivity for the street blocks could be improved by creating midblock east west connections achieved by a small lane or pedestrian pathway to break up the blocks. He notes the plans indicate a network of off-street pedestrian paths within the development with a continuous street path network throughout the development. These paths can link to existing paths at Redlands Road, Tower Street and Barber Street and are also nominated on the Cemetery Road frontage. He concludes the development provides an adequate network of pathways and appropriate integration within the surrounding neighbourhood.
21. With regard to open space, Mr Hunter notes the DCP does not provide any guidance and he does not agree that a fixed standard should simply be applied in any context as suggested by Ms McCabe. He agrees the best approach to open space planning is to focus on context and performance standards with open space being located within 400 metres of residences and be of a size suitable for its function, be fit for purpose, accessible and embellished. He says the minimum viable size for public open space is 3000m2 in higher density settings with local open space having areas of 5000 square metres up to two hectares. It is also relevant to consider the demand for open space, in lower density areas which contain reasonable backyard private open space areas, demand for open space may be lower than in higher density areas where access to backyard spaces is limited.
22. Mr Hunter agrees there is no specific detail of how the open space reserves are to be developed however despite this, he notes the areas do not contain any drainage functions, are not on any significant slope and the areas would therefore meet a range of functions. He concludes the areas are adequate.
23. Similar to the views expressed by Mr Hunter, Mr Sammon considers the proposal meets the relevant requirements within the DCP. He says the development provides lots with areas and dimensions that enable the appropriate siting and the construction of a dwelling, adequate solar access, private open space, vehicle access and parking, water management, easements and the retention of significant vegetation and features where possible.
24. This is particularly evident with the design of indented parking along Cemetery Road which endeavours to minimise the required tree removal and maintain the aesthetic appeal of native vegetation whilst providing adequate functionality of a local distributor road. He notes the trees appear to be already impacted by the current road and swale drains and will be impacted further by their proposed works however an attempt should be made to retain as much native vegetation as possible whilst meeting the provisions of the Council's development guidelines. He considers the development can achieve and be compliant with all relevant Council standards. He also considers there is sufficient information provided to demonstrate the main urban design principles can be achieved and these specific engineering requirements can be met at a later date to achieve a quality functional outcome that will meet the required standards.
25. Mr Sammon says the development has been prepared with regard to the Corowa Township structure plan and is generally in accordance with the relevant principles of that plan and whilst the development will undoubtedly result in a significant change to the town, that change will be positive and provide a variety of housing, benefit from the most up-to-date infrastructure to meet current standards and provide a significant economic boost to the town. He considers the development has been designed with due consideration to the site constraints. In regard to the northern parcel, the site has an approximate average gentle fall of 2% from east to west with a maximum of 2.5% had its steepest point falling towards the direction of the existing dam. Given the gentle fall across the site, there will be insignificant elevation differences between lots and building pads and with further detailed design at construction certificate stage, he is confident a desirable design outcome can be achieved. Given the land is falling away from the existing developments to the east, he does not believe the interface with the existing residential development will present any significant challenges. He notes there is minimal vegetation on the site and that the access point road from Cemetery Road has been located to avoid existing remnant trees. In relation to the southern parcel, the existing contours demonstrate a gentle average slope of 0.83% fall in a south-westerly direction to the proposed retardation basin in the southwest corner of the precinct. He says the natural slope on the land will provide for good drainage and a good design outcome with minimal elevational differences between lots. There may be a need to be some additional rear lot drainage incorporated into a detailed design to pick up the surface flow. Similarly, the access points off Cemetery Road have been designed to avoid the existing trees.
26. Mr Sammon does not consider the vegetation around the existing dwelling is of sufficient value to retain as it is known remnant and has been planted.
27. He notes the possibility of the Sloane's Froglet being present in winter months in the existing drainage channel across the length of the southern boundary and says there is provision in the design for a 11.5 metre wide reserve which incorporates the open channel and provides sufficient access for maintenance vehicles.
28. Mr Sammon says the design does not aim to emulate the development of the past with adjoining residential developments to the east developed some time ago where larger lot sizes were the norm and people enjoyed the large open spaces of their backyards and gardens to connect with the surrounds. These developments have been designed on urban design principles at the time where cul-de-sacs were popular with limited connectivity between neighbourhoods. He says the proposed development plan provides for a more contemporary design solution. Each creates landscaped open spaces within neighbourhoods which provides an opportunity to bring people together and create a sense of community and connectedness and to support people's health and wellbeing. The open space areas are located within 400 metres walking distance to almost all dwellings within the precinct and are well located with several street frontages to provide for excellent surveillance and community safety.
29. He considers the proposed lot sizes achieve a balance between developments of the past and the better utilisation, efficient and effective use of infrastructure and ultimately a more sustainable outcome. Better use of infrastructure also enables greater housing affordability which is a significant priority for regional NSW communities. The design response considers the interface with Cemetery Road and the farm land to the west with larger lots along Cemetery Road providing a transition to the more rural outlook with many lot sizes over 700m2 for Precinct 1A and up to 888m2 for Precinct 1B. This provides an opportunity for greater diversity in housing across the precincts.
30. The provision of off-road shared paths for walking and cycling along the north south collector road in Precinct 1A link to the open space area and provision for a shared path along the full frontage of the local distributor road network being Cemetery Road provide for safe, healthy exercise opportunities. Precinct 1B also provides shared path opportunities along the north south and east west collector roads and the western distributor road being Cemetery Road linking people to the public open space areas. The shared path and footpath network also links the community to proposed public transport opportunities along the Cemetery Road. He considers the development provides an attractive place for people to live, developed in a sustainable way incorporating best practice environmental management guidelines and in particular water sensitive urban design principles to treat stormwater and to improve environmental outcomes outlined in the stormwater management plan provided as part of the application. He acknowledges detailed landscape plans have not been provided at this stage however considers a requirement for detailed landscape plans to be provided as conditions of consent which would enhance the built environment and open space areas prior to the issue of a construction certificate. He says the community's expectation that the landscape designs plans would need to be designed in accordance with the Council's open space strategy and subdivision design guidelines and as a minimum the landscape plans would include fencing, street trees, pathways, seating, play equipment, barbecue facilities etc, all of which would be a normal expectation of the community to contribute to a liveable environment.
31. Mr Sammon says there is a diversity of lot sizes both in terms of area, orientation, mix of frontages, depth and width of lots and shape. It has a mix of lots to encourage diversity in housing and to provide for a mix of dwelling types. Lot orientation meets the DCP requirements.
32. He says there is sufficient information to determine that the site will not pose any level difference issues. If the site had steeper grades, then a more detailed design response may be appropriate at development application stage.
33. Mr Sammon advises the drainage basins have been sized in accordance with Australian Rainfall and Runoff and adopt rain runoff coefficients which are in accordance with the Council's Engineering Guidelines. The required volume for the detention basin for Precinct 1A has been calculated to be 1850 cubic metres and for Precinct 1B 2020 cubic metres as outlined in the stormwater management plan provided as part of the application. The development plans show the area of the drainage reserve available and hence a simple calculation can determine the depth of the basement in Precinct 1A to be approximately 1 to 1.5 metres deep and Precinct 1B approximately 2 to 2.5 metres deep. The footprint of the required basin area has been detailed on the plans and applying the batter slopes consistent with the standards, he concludes there is sufficient area available to accommodate the required onsite detention storage requirements. Further detailed design will be completed at the construction certificate stage and he says the basins are designed to primarily manage the drainage requirements of the development to a 1% AEP and are not identified as public open space. With some well-designed landscape elements, these areas can be presented as an aesthetically pleasing green space, but their primary function is the management of stormwater.
34. The road network has been designed to provide connectivity throughout the development however, Mr Sammon acknowledges that the development would benefit from additional inter-block pedestrian linkages which could be easily incorporated into the design to provide a better pedestrian movement network.
35. Mr Sammon says the identification of the presence of the Sloane's Froglet had not been made at the time of the development application was lodged however, leaving the existing open channel untouched and incorporating it into the 11.5 metre wide green reserve will accommodate its habitat.
36. The experts then consider whether the jurisdictional terms of cl 7.9 Essential Services of the LEP are met.
37. Ms McCabe states that the amended application did not detail how, and when, any of the services will be provided. She says there is limited engineering details such as an assessment of the environmental impacts of the works required for the services and these services are essential to the proposed subdivision. The capacity of access and service to the site are a fundamental and threshold issue to the consideration of the acceptability or otherwise of the merits of the proposal. It is necessary to understand what service upgrades are required and include what the likely impacts from these upgrades are and what assessment and approval framework applies to them. The upgrade to road access along Redlands and Cemetery Roads, upgrades to sewer facilities and provision of water and sewer infrastructure are works required by, and directly related to, the proposed subdivision.
38. From a planning perspective because these works are an integral and fundamental part of the proposal, the environmental impacts and potential mitigation measures need to be understood. They are not minor works. The road upgrades require a detailed understanding of the road geometry, extent of earthworks and services locations. How the road upgrades integrate with existing roads and levels and whether they result in tree loss need to be understood. They are not a matter that can be deferred as they are an integral aspect of the application and are only required because of the application and should therefore be properly considered as part of the assessment of the application. The lack of information means that any informed assessment cannot be undertaken as the assessment of these matters cannot be undertaken at this stage and the actual impacts, potential mitigation and acceptability or otherwise of the proposed works cannot be determined. There is insufficient information to consider what is a fundamental aspect of the application, the impacts cannot be left for another day.
39. Mr Sammon refers to the VPA which, at the time of preparation of the joint report, had not been formally considered by Council.
40. Mr Hunter makes reference to the servicing strategy and services plan which indicated proposed water, sewer, electricity, telecommunications and gas for the development. In addition, he references the stormwater management report and associated stormwater management plan. The plans provided for consideration with the application show proposed road carriageway pavements and he notes that there are no dimensions in plain view however, the plans indicate cross-sections of proposed roads by road type showing total reserve width, carriageway width, footpath locations and typical service placement. He also notes the traffic impact assessment which accompanied the application and says the VPA provides for delivery of necessary infrastructure upgrades and sets out these specific infrastructure components to be delivered and the timing of the works.
41. Mr Donders says the Council's water main infrastructure within vicinity of the development are smaller reticulation mains that would not be capable of supplying the required head pressure and flows to meet peak instantaneous demand standards for the proposal. Larger trunk mains would be required to be extended around the site and fed to new reticulation mains to meet these standards. Additionally, trunk water mains would be needed to be extended to service the southern development site.
42. Council sewerage infrastructure in the vicinity of the proposed development sites are made up of existing sewer gravity sewer mains that are fed to an existing sewerage pump station. Storage is then pumped through an existing rising main and discharged into the existing inlet works at the Corowa STP. These sewer gravity mains would be large enough and are located in a sufficient position to allow extensions to create internal sewer reticulation systems for the proposed development. However, the sewage pump station, rising main and inlet works at the treatment plant would not be capable of transporting the sewage discharge from this development. Accordingly, the sewage pump station will need to be upgraded to cater for the development. Whilst pump stations can be upgraded incrementally until the well volume is exceeded then major augmentation is required. The well volume of the pump station has the capability to be upgraded to approximately 20 litres/second however, this capacity is short to enable the entirety of the proposed development to be serviced.
43. The existing sewer rising main is a 150mm uPVC pressure pipe and is approximately 1740m in length. Due to the flow resistance characteristics of this main, its capacity would be approximately between 15 litres/second and 20 litres/second depending on what mechanical and electrical upgrades had occurred at the pump station. With the estimated discharge from this development, this capacity would be exceeded. A new 2200mm rising main would be required to service the proposed development. This new main would need to be installed along Cemetery Road and Nixon Street and be in close proximity to the existing wetlands at Nixon Street.
44. Council's STP located in Nixon Street, is an EPA-licenced facility. Under this licence, the maximum flow through the inlet works is capped at 87 litres/second. The current combined capacity of Council's existing sewage pump stations that discharge to the inlet works is equal to this maximum licence flow rate. Due to this constraint, a development of this size will directly result in a need to undertake modifications and additions to the infrastructure at this facility. A common approach to solve this issue is to install an inlet works balance tank to temporarily store flows in excess of the maximum licenced flows. The storage volume required due to this development alone is 1.15 ML.
45. Under s 60 of the Local Government Act 1993, local water utilities are required to obtain a ministerial approval for the construction of or modification of water or sewage treatment plants. Each proposed water or sewage treatment works project requires an option study, concept design report and detailed design that is required to be submitted to the NSW Department of Planning, Industry and Environment - Water Utilities group for review. This review process can generally take between 12 to 18 months. This is then followed by tendering, award, construction and commissioning of the construction works which generally take around 12 months.
46. It is common ground that Essential Energy, the electricity provider, can service the development with the Council receiving comments to that effect on 3 May 2021 however, the following proviso was made "If the proposed development changes, there may be potential safety risks and it is recommended that Essential Energy is consulted for further comment".
47. Mr Donders says the development proposal depicts new roads connecting to existing Council controlled roads. These new road access points are generating an increase on traffic volumes that will directly result in the need to upgrade the existing roads. Cemetery Road and Redlands Road will receive the majority of the increase in traffic making the upgrade requirements to be that of a local distributor road category. The traffic volume increase to Tower Street will result in an upgrade to a collector road category. Chisnall Street is an existing constructed to local access road category and will also receive an increase in traffic volumes. It is an existing development area where no upgrade can occur and accordingly, he says details should be presented to depict how the increase in traffic volumes are limited to ensure the road categories capacity is not exceeded and ensure suitable road access is maintained for the existing residents.
48. He concludes the application was accompanied by basic servicing plans and layout drawings which do not provide sufficient information to understand the nature of works required. Mr Donders advises that any upgrades detailed above to allow the development to proceed have not been included in the Council's long-term financial plan and therefore the Council does not have the funds to undertake or contribute to any of the upgrades.
49. Mr Sammon says the VPA is the result of Council engaging specialist reports to assess infrastructure in order to understand what upgrades were required for the development. He considers the VPA clearly identifies what works are required and when, and the applicants agreed to provide infrastructure to service the development or a monetary contribution to upgrade Council's existing infrastructure. He considers the environmental impacts of the known infrastructure requirements were assessed at the time of preparing the development application and whilst it is acknowledged that some offsite or external works may require further environmental impact investigation, this has been included within the VPA. Such work will form part of a full detailed design and analysis of the required infrastructure prior to the issue of a construction certificate.
50. Mr Sammon says all required road upgrades have been identified on the concept development application plans, Exhibit A with sufficient information to enable a determination to be made. The applicants have provided a typical road geometry and dimensions on the plans and he would expect detailed design plans to be prepared and submitted to Council prior to the issue of a construction certificate in accordance with the Council's infrastructure design manual.
51. With regard to the contention of insufficient environmental impact assessment, Ms McCabe notes the concept development plan references existing trees to be retained subject to further investigation. It also notes that the centre line is offset to minimise vegetation loss and includes a dedication of 10 metres of land along the Cemetery Road frontage. There is some grey colouring on the Cemetery Road frontage that may reference indented parking bays on the eastern side of the roadway however, this is the only information regarding the upgrade of the road. If the section is read from west to east, consistent with the location of the North Point on the plan, the typical cross-section would have the existing trees located within the proposed pavement. If it is read that the 12 metre verges actually the eastern side of the road, then the trees are potentially located somewhere near the kerb. The Test of Significance report has assumed that there is no impact on that reason of trees are remaining. There is no detail of road geometry, earthworks, location of services and trees along the existing reserve and proposed road upgrade and an inconsistency between the Test of Significance report, traffic report and concept plans. She says these matters require a comprehensive amount of information to determine whether trees are to be retained or removed and if retained, how they are to be retained and whether this is an acceptable outcome noting that the trees in question belong to a threatened EEC. It is not a matter that she says should be left for further investigation. Offsite impacts can be caused, not only by the proposed development impacting on adjoining or other land, but also by development that has a real and sufficient link with the proposed development such as road upgrades and necessary infrastructure. These works and the impacts arising from the works have not been documented.
52. Mr Hunter says the Test of Significance report that accompanied the development application has identified the existing vegetation within the site and along immediate interfaces of the site. The trees are identified on the plans and detailed in the Test of Significance report. He observed Cemetery Road appears to be presently contained to a relatively narrow road reserve, with the more substantial vegetation located on the eastern side of the carriage way, adjacent to the development sites. The road carriageway and disturbed road shoulder appear to be close to the existing trees and as this was not within his expertise he defers to the determination of environmental impacts by other experts.
53. Mr Sammon notes the cross-sections shown on the plans that form the application are marked as 'typical' and do not show the location of every tree along Cemetery Road. The trees are clearly surveyed and marked on the concept development plan and identified in the Test of Significance report prepared by Hamilton Environmental. The full detailed design of the road would normally be expected to be carried out at the construction certificates stage in accordance with the Council's guidelines. Access roads to the development are located to minimise the impact on the existing trees and avoid removal; and he acknowledges that the trees may be further impacted by the proposed works however, after viewing the trees on site, he considered they are already impacted by the existing road, drainage and services that already encroach into the tree protection zones. Even though the trees are already impacted, the design responses attempted to minimise their removal by proposing an offset centreline and indented parking where possible as shown on the plans. Whilst it may not be possible to retain all remnant vegetation along the Cemetery Road, an attempt to minimise total loss is being made. He says it may be better to locate the underground drainage on the western side of Cemetery Road to minimise ground disturbance. He expects normal construction techniques such as boring services will be employed where possible to minimise disturbance to the TPZs and the specifications for road widths can be achieved.
54. The experts considered the provisions of cl 7.1 Earthworks in the LEP.
55. Mr Hunter agrees the application does not include specific detail on proposed earthworks to be undertaken and, based on the plans presented, he considers some level of disturbance will be necessary to establish proposed internal roads, service trenches and stormwater basins. He says the level of disturbance can be understood through observation of road cross-sections which show the depth of services with accompanying plans showing associated alignments. He also understands the two drainage basins will be constructed by excavating and creating a batter to the perimeter. Based on observations of the site and the information presented, the land appears to have no significant elevation changes that will result in the need for significant site cut and fill.
56. Mr Donder says the engineering plans submitted depicts overland flow paths along the proposed road networks that are directed to proposed detention basins. These issues have a direct effect on the extent of earthworks required and details should be provided to satisfy the consent authority that the extent of cut and fill will enable the stormwater collection and disposal to function correctly without impacting existing drainage networks, existing road reserves, and neighbouring property and proposed lots. Sections through the proposal should depict how its finished surface levels match into those existing constraints of adjoining development and road networks to ensure no adverse impacts have been created or, if any upgrades are required, these need to be understood.
57. Mr Sammon considers that in the past, the Council required an earthworks plan and detailed design plan to be prepared at construction certificate stage. He did concede that this was his experience on smaller developments of around 11 lots rather than a scale proposed in this application. At that time, all design levels would need to be established and detailed in accordance with the Council's guidelines. It is standard engineering practice to balance cut and fill earthworks on site and hence a design engineer will model a site to avoid the need to import material from off-site. He considers the site has sufficient fall to achieve a balance earthworks model and where it becomes more of a challenge is in low-lying flat terrain where site levels may need to be raised to achieve a desired engineering outcome.
58. Clause 7.3 of the LEP Stormwater Management requires the consent authority to be satisfied of those matters detailed at [38] above. Ms McCabe says the lack of information provided in the application means these matters cannot be addressed.
59. Mr Hunter relies on the stormwater management strategy and stormwater management plan lodged with the application.
60. Mr Donders says the stormwater strategy submitted has calculations depicted for pre- and post-development flows and describes what the resulting retention basins volumes would need to be however, the pre-development flows calculated are not reflective of the site conditions. For example, the northern side has an existing dam in the north-western corner that catches a large portion of the pre-development overland flow. The stormwater collected in this dam does not discharge offsite until the dam's capacity is exceeded. Once the dam spills, it is captured in an existing shallow graded pit and discharges to an existing open drain on the north-western side of Cemetery Road. Hence, the allowable stormwater discharge off site will be significantly less than what is stated in the submitted stormwater strategy which will directly result in a larger retention basin required to retard the post-development flows. He also says no details have been provided to demonstrate how the proposal will capture and convey stormwater to the proposed retention basins and what this impact on the basins will have. For example, the pipe network along Cemetery Road appears to be approximately 380m in length with a relatively flat existing surface. Once minimum pipe grades and cover are achieved, the inlet to the basins would be in excess of two metres. As the discharge point from this northern site is to an existing shallow graded pit, the proposed basins and incoming stormwater network would remain full, resulting in a very small effective storage volume. A 2m deep body of water will also prevent a public safety risk. Similarly, no details have been provided for the major system flows and it has not been demonstrated how the proposal will capture and convey the overland flows to the proposed retention basins and what the extent of flooding will be on the existing and proposed road reserves and properties. As the proposed retention basin in the northern site looks to have a minimal effective storage volume, a 1% AP event would most likely cause flooding of Cemetery Road. He says there is not sufficient information to determine whether there is sufficient area available for the retention basins, or if a stormwater pump station needs to be installed. This is imperative as it is necessary to understand future operating costs and is a public safety risk.
61. Mr Sammon says the design is not proposing a multi-bayed or multi-celled design and, should it be determined that the Sloane's Froglet is present then a different approach to stormwater modelling and treatment would be required to meet current habitat requirements. The stormwater management plan clearly demonstrates that runoff from the site will be limited/retarded to the current undeveloped rate. There will be no adverse impacts on the downstream wetland on the corner of Nixon Street and Cemetery Road. Furthermore, the stormwater runoff will be treated by water-sensitive urban design techniques to best practise environmental management guidelines in terms of achieving water quality targets. The proposed 300mm diameter water main to service Precincts 1A and 1B and to benefit the whole Federation Council reticulated water network, beyond the confines of the development, has been shown to traverse property identified as DP 2840. Prior to the issue of a construction certificate, the developer will need to negotiate access and easements to install the required infrastructure with the owner. Should agreement not be met, an alternative route is available on the western side of Cemetery Road. He says that given the water main will benefit the broader community, the applicants may need to seek Council's assistance in negotiating access for this essential infrastructure. He is confident that sufficient area has been set aside to accommodate the runoff from the site in a 1% AEP rainfall event within the two drainage reserves proposed, with full detailed design plans, including cross sections, long sections provided to Council for approval prior to issue of the construction certificate.

The draft conditions

1. Mr Hemmings, for the applicant, advocated that consent should be granted subject to a range of conditions that have the effect of adopting the further amended concept design plans, Exhibit G. That was despite the application not being formally amended through lodgement on the NSW Planning Portal to reflect those plans nor leave being granted by the Court to amend the application.
2. The applicants filed those conditions with the Court on 29 September 2021, following conclusion of the hearing. In addition to endorsing the further amended plans, the following modifications were proposed as part of draft condition 2: 2.2.2 The development is to be modified to include the following, in accordance with the plans contained in Annexure A. (a) Relocate the reserve for public open space to the eastern boundary including reconfiguration of the road network as required. (b) Connect the road north of proposed reserve through to the land to the east. (c) Provide an additional 40m wide reserve along the western boundary to the site at Cemetery Road (excluding required road reserve widening) to create a habitat dispersal corridor for the Sloane's Froglet, which is to be dedicated to Council as a reserve. This stormwater detention basin is to be reconstructed incorporating three additional shallow breeding ponds placed along the habitat corridor. (d) Provide a 2.5 metre east west shared path network from Cemetery Road through to the proposed reserve. (e) Provide a 2.5m shared path along Redlands Road to match into the existing path network to the east at Jasmine Court. (f) Provide a 2.5m north south shared path network along the eastern side of the proposed 40m western linear reserve linking from Tower Street to Redlands Road. (g) Widen the eastern side of Cemetery Road by 1m from the existing edge of a seal to avoid existing vegetation with the ultimate trafficable width of 8.3 metres. (h) Incorporate one bus stop and indented drop-off/pickup area to service the southern precinct. (i) Delete lots 43-45. (j) 300mm diameter trunk water main to be shown to the eastern side of the proposed 40 metre reserve from Redlands Road to the southernmost road in the Precinct 1B. The final plan of subdivision must identify a designated building envelope for lots 1-3 (inclusive) to create a native vegetation protection zone. Precinct Plan 1B (a) Provide a 2.5m wide east west shared path within a 10m wide reserve from Cemetery Road to the eastern internal road and link with the internal footpath network through reserve to Katrina Circuit. (b) Provide an additional 40m wide reserve along the western boundary of the site at Cemetery Road (excluding required road reserve widening) to create a habitat dispersal corridor for the Sloane's Froglet, which is to be dedicated to council as a reserve. The stormwater detention basin is to be reconstructed incorporating three additional shallow breeding ponds placed along the habitat corridor. (c) Widen the eastern side of Cemetery Road by 1m from the existing edge of seal to avoid existing vegetation with the ultimate trafficable width of 8.3m. (d) Incorporate one bus stop and indented drop-off/pickup area to service the southern precinct. Delete lots 24, 60, 61, 62, 97, 98, 99, 134 and 135. (e) Combine lots 148 and 149 to create one lot. (f) Remove road connection between Barber Street through to Cemetery Road and create a reserve with shared path. (g) Stormwater from lots 135-147 should be clearly marked as drainage. (h) 300mm diameter trunk water main should be shown to the eastern side of the proposed 40m reserve from Redlands Road to the southernmost road in the Precinct 1B. The amended plans are to be provided to Council for approval prior to the issue of the construction certificate for stage one of the development. (i) The development is to be development over a total of 13 stages. Prior to issue of a construction certificate, a staging plan detailing which infrastructure will be delivered at each of the 13 stages shall be submitted to Council for approval. The staging plan shall ensure that adequate amenity will be provided to the lots in each stage. *Please note a resolution of council will be required to classify the reserve area between lots 129 and 130 in accordance with the Local Government Act 1993. The developers should allow adequate time for the matter to be reported to council.
3. In addition, deferred commencement conditions are proposed as follows: A. COMPLIANCE WITH THE ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 It is noted that the development is to be referred to the Department of Agriculture, Water and Environment to determine if the works require approval or are exempt under the Environment Protection and Biodiversity Conservation Act 1999. Evidence of referral for exemption or approval(s) are to be in place and a copy provided to Council prior to works commencing on site. B. SLOANE'S FROGLET HABITAT MANAGEMENT PLAN A Sloane's Froglet Habitat Management Plan for the areas of this site impacted by the development (including off-site impacts) is to be provided to council prior to any works associated with the development commencing. A Sloane's Froglet Habitat Management Plan is to include the following: (i) Detail methods, outcomes and results of the assessments and investigations undertaken in relation to Sloane's Froglet. (ii) Detail compliance with Department of Planning, Industry and Environment: Biodiversity Conservation Division's "Sloane's Froglets Stormwater Wetland Design Guidelines 2017" (as amended or updated). (iii) Sedimentation management for all Sloane's Froglet habitat areas including details of control measures and ongoing maintenance. (iv) Vegetation management for all Sloane's Froglet habitat including details of the landscaping and maintenance within all basins, including watering regimes, weed control, establishment and survival measures; and a monitoring and reporting regime to ensure revegetation objectives are achieved. (v) Outline how the development aims to assist Sloane's Froglet at the landscape level with consideration to connectivity an enhancement between important breeding areas surrounding Corowa. (vi) Detail measures to be implemented in open space areas to manage and mitigate potential impacts on the froglet arising from pedestrian access through the relevant open space areas. (vii) Incorporate habitat modelling on the lowlands surrounding Corowa to demonstrate the onsite concept as well as inform future development planning of stormwater management and habitat design (both breeding and dispersal) within R2 lands. (viii) All of the on-site habitat design, management and protection measures for Sloane's Froglet are to be supervised by an appropriately qualified frog ecologist. (ix) There is to be educational signage prepared on the Sloane's Froglet located at both of the proposed stormwater management areas to inform residents on how to assist the local population. The Sloane's Froglet Habitat Management Plan is to be endorsed by Federation Council prior to works commencing on site. Once endorsed the Sloane's Froglet Habitat Management Plan becomes part of the consent and its recommendations are to be complied with. C. VEGETATION MANAGEMENT PLAN A vegetation management plan (VMP) for the development site and offsite areas impacted by works associated with the development is to be provided to Council prior to any works associated with the development commencing. The VMP is to be endorsed by Federation Council prior to work commencing on site. Once endorsed the VMP becomes part of the consent and its recommendations are to be complied with. The VMP is to be consistent with the Sloane's Froglet Habitat Management Plan when considering revegetation of the dispersal corridor and breeding cells. Any road underpasses that are not part of the stormwater management and breeding cells should also be supported with low fringing grasses and sedge vegetation that will not exceed 45cm and consistent also with in-stream vegetation outlined in Sloane's Froglet Stormwater Wetland Design Guidelines report prepared by Spire for Albury City Council and the NSW Office of Environment and Heritage (ACC & OEH(2017)). The VMP should detail the maintenance to be undertaken to ensure the success and survival rates of plants (not including Sloane's Froglet habitat wetlands) for a period of 24 months prior to Council taking ownership of all drainage reserve(s), water environs and street trees. The VMP should also detail the maintenance to be undertaken to ensure the success and survival rates of plants for the Sloane's Froglet habitat basins for a period of 36 months prior to Council taking ownership of all drainage reserves and water environs. There is to be no use of pesticides or herbicides within or adjacent to the entire frog dispersal corridor, that southern existing drainage or any of the managed roadside reserves. D. OWNERS CONSENT AND LAND ACQUISITION Owners consent is to be provided for the offsite works required for the development over lot 1A, DP2840, 121-141 Tower Street Corowa and lot 2, DP 1214833, 106 Katrina Circuit Corowa. All costs associated with the acquisition of the required land or creation of easements over the areas of the lots listed, or in relation to any alternative arrangement that is to the satisfaction of the responsible authority is to be borne by the Developer. E. SECTION 60 APPROVAL UNDER LOCAL GOVERNMENT ACT 1993 Works on site or associated with the overall development are not to commence until such time as Ministerial Approval is granted in accordance with section 60(c) of the Local Government Act 1993 for the upgrade works to the Corowa Sewerage Treatment Plant. F. OPEN SPACE AND LANDSCAPING MASTER PLAN An Open Space and Landscaping Master Plan is to be provided to and approved by Council prior to any works commencing on site. The plan is to include the following: ● Details of all landscaping throughout their development including street trees. ● Details of tree protection methods, including the plotting of protection zones, for all vegetation identified to be retained. ● A street tree planting plan for roads within the subdivision. The plan is to clearly detail the location, species, height of maturity, and number of plants. ● Details all the landscaping for the 40m wide reserve(s) running the western boundary in accordance with the Sloane's Froglet Habitat Management Plan and the Vegetation Management Plan. ● Any tree planting and landscaping within the frog dispersal corridor should be sparse to ensure that the overflow breeding cells do not receive any more than 15% shade at any time during the day. Small areas of planted sedges and grasses providing vegetation clumps together with other shorter habitat opportunities (such as slab rockpiles) are encouraged as part of remaining landscaping. ● Drainage basins and reserves to be landscaped around their perimeter to provide a high level of public visual amenity. ● Remaining portions of the frog dispersal corridor outside of the stormwater breeding cells may be landscaped for public open space and recreation, provided there is a continuous grassed area broken only by narrow footpaths and small vegetated clumps exist for shelter. ● Surface treatments in nature strips, including grassed areas, all hard surfaces and their materials, garden beds and the like. ● Fencing and interface treatment plan, including the locations and types of any fencing, their height, materials and colour. The cost of providing all facilities is to be borne by the developer. The master plan is to be endorsed by council and once endorsed becomes part of the consent. G. ENGINEERING WORKS EXTERNAL TO THE DEVELOPMENT SITE OR NOT DEFINED ON THE APPROVED PLANS The following engineering works external to the development site are required to be approved prior to issue of the first construction certificate for the development (not including demolition): ● All newly constructed roads that pass through the Sloane's Froglet dispersal corridor should permit a minimum of a 10m total underpass width. This may be made up of small box culverts of no less than 1m width each and no less than 400mm high. The base of the culverts and the lead in areas on both sides of the road should be excavated so that they are lower than the surrounding land surface and permit pooling of water completely below the road area but not such that the full culvert height will be fully immersed after heavy rains. ● Water - construct a 300mm diameter trunk main from the existing 300mm diameter trunk water main that ends at 144 Redlands Road along Redlands Road to the intersection of Cemetery Road. Please refer to condition 3.12. ● Public open space - all infrastructure outlined in the open space masterplan (condition 2.2(F)) for 3450 square metre reserve that requires either a Part 4 or Part 5 approval in accordance with the Environmental Planning and Assessment Act 1979 is to be approved prior to the subject works commencing. Please refer to condition 2.2(F). ● Sewer - replace existing sewer pumps at Sewerage Pump Station 28 located in Cemetery Road Corowa which at time of approval had capacity for an additional 67 equivalent tenements, to increase the flow rate from 14 litres/second to 20 litres/second providing an increased capacity for an additional 160 equivalent tenements. This will leave a shortfall of 79 lots for the overall development. Please refer to condition 3.8. ● Water - construction of a 300 mm diameter trunk main from the intersection of Redlands Road to Cemetery Road, along Cemetery Road to Tower Street and connected into the existing 250mm diameter trunk main in Tower Street. Please refer to condition 3.12. ● Water - construction of a 300 mm diameter trunk main from the intersection of Tower Street and Cemetery Road along Cemetery Road to the southern boundary of the overall development site. Please refer to condition 3.12. ● Sewer - construction of a new pump station with the ability to pump up to 30 litres/second of effluent in a duty/standby pumping configuration. ● Sewer - augment the existing rising main in Cemetery Road and Nixon Street from Sewage Pump Station SPS 28 to the Inlet Structure at the Corowa Sewage Treatment Plant, intersection of Nixon Street and Railway Street. Please refer to condition 3.8. ● Water - construct a 250 mm diameter trunk main from the intersection of Cemetery Road and Southern most Street, east through to Hermitage Drive. Please refer to condition 3.12. ● Public open space. All infrastructure outlined in the Open Space Masterplan (condition 2.2 (F) for 3419 square metre reserve, that requires either a part 4 or part 5 approval in accordance with the Environmental Planning and Assessment Act 1979 is to be approved prior to the subject works commencing. Please refer to condition 2.2 (F). Cost associated with all works are to be borne by the Developer. All cost associated with the required studies, approvals and on ground works are to be undertaken at no cost to Council, including acquisition of any private land.
4. In addition to these conditions, draft conditions require the applicants to submit to, and have approved by, the Council, a design for all new roads, existing road upgrades, landscaping and service required to serve the subdivision. This includes the Redlands Road, Tower Street and Cemetery Road upgrades, sewer infrastructure, water infrastructure and stormwater infrastructure.
5. The Council's position is that the proposed amendments should not be imposed by way of condition as: "1. Annexing plans to which leave was refused to rely upon is disingenuous. The plans have not been subject of a proper assessment and leave was refused as the Council could not reasonably respond to the plans on the third day of the hearing; 2. The proposed conditions are not sufficiently clear to ensure that the Court would be satisfied of the final outcome; 3. The buffer zone, in particular, requires careful design to ensure that the impacts on the Sloane's Froglet are sufficiently mitigated (noting Council's primary position is that a BDAR should be prepared and mitigation measures included in the BDAR). The condition does not provide for the detailed measures required and putting those design details off for another day would not satisfy the Court that a sufficient environmental impact assessment has been undertaken prior to the grant of development consent as required by s 4.15(1) of the Environmental Planning and Assessment Act 1979 (see also: Mison v Randwick City Council (1991) 23 NSWLR 734); 4. It is unclear at what point in the development the now proposed environmental mitigation measures would be implemented in the absence of a detailed staging plan. The Court would not be satisfied that there would not be an unsatisfactory environmental impact in the interim."
6. In addition, it submits that the works detailed in the conditions were not put to the experts, there is no evidence that if undertaken the impacts, such as the impacts to the Sloane's Froglet, would be sufficiently mitigated, there is a lack of certainty, the conditions seek to defer fundamental considerations, there is no owner's consent for the off-site works, a prerequisite for consent and the conditions highlight that the application had insufficient information for the Court to properly identify and consider the likely impacts of the development.

Conclusion and findings

1. Having regard to the evidence and the submissions made on behalf of the parties, I am not satisfied that the development should be approved. Of particular relevance is the submission made for the Council that the application contains insufficient information for the Court to be satisfied that there will be no adverse impacts arising from the development, particularly in relation to endangered ecological communities.
2. Ms Reid described the hearing as an expensive section 34 conciliation conference. I tend to agree. The application was originally lodged with the Council over 12 months ago and, in preparing the Statement of Facts and Contentions, the Council highlighted the areas which it said there were deficiencies in detail, surveying and investigation. At that time, the issue of the Sloane's Froglet habitat had not been identified, however, it is apparent that the necessary investigations have still not been completed and I am not satisfied from the information provided that there will be no adverse impacts to either the remnant vegetation along Cemetery Road and the Sloane's Froglet.
3. For that reason, I cannot be satisfied that the matters raised in cl 7.4 of the LEP have been satisfactorily address or that the development will not have any adverse impact on the significance of the Sloane's Froglet or on the habitat elements providing connectivity on the land. It has not been demonstrated that appropriate measures can be adopted to minimise or mitigate the impacts of the development. It is unclear whether the works that have been carried out in Albury would be an appropriate means of mitigating adverse impacts to the Froglet. It has not been demonstrated how the vegetation will protected or if it will be removed.
4. The Sloane's Froglet is listed as vulnerable on the NSW Biodiversity Conservation Act 2016 and endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and accordingly, a higher level of consideration and assessment of the impacts is required. There is no adequate information or a clear pathway that has been prepared that will ensure the development will not have an adverse impact on the species.
5. I cannot accept Mr Hemming's proposition that works along Cemetery Road will be the subject of a future application. The works are integral to the application, are shown on the plans that form part of the application and are recognised by the experts as being necessary for the development to occur.
6. In addition, I am not satisfied, in the absence of the VPA or detailed investigation and evidence, that the works required to service the development will be carried out in a manner that does not have any adverse impacts. It is not appropriate to defer consideration of such matters to a later date when the works are required as an integral part of the development. Similarly, the application as lodged on the Planning Portal and before the Court proposes works in Cemetery Road and, according to the agreed position of the experts, those works are required and have a direct nexus to the development. Accordingly, I am not satisfied that the application will not adversely impact the natural and built environment.
7. I am also not satisfied that the plans before the Court are worthy of consent. It is clear that the recommendations made by the various experts in the proceedings have merit and whilst some of these matters could be the subject of conditions of consent, I do not consider it inappropriate to follow the course suggested by Mr Hemmings, and make such extensive changes to an application by way of conditions of consent. I do accept that it is possible to impose a condition that modifies the development subject of the development application pursuant to the provisions of s 4.17(1)(g) of the EPA Act, it is not appropriate to impose such a condition where the impacts of those changes have not been assessed.
8. For consent to be granted, the Court must be satisfied firstly that the development is appropriate for the site; secondly, that there are no adverse impacts that will arise as a result of the development; and thirdly, that the jurisdictional tests have been met and, if consent is granted, that any conditions imposed are clear and provide certainty. I am not so satisfied.
9. It is apparent from the expert evidence before the Court that the plans the subject of the application are not an appropriate form of development for the site. There is a lack of consideration of good urban design practice, connectivity and the road layout will have adverse impacts on the surrounding road network and amenity of residents of those streets. No consideration of embellishment of the roadways or public reserves has been given and there are still no details of what the development would look like if it were to be constructed. There are no details of how the basins at important intersections would be made safe given the depth of water they would hold during storm events, it is unclear how the proposed public reserves would be developed, what function they would perform and, in the case of the ecological corridor that is proposed to protect the Sloane's Froglet, if it were to be conditioned, it has not been demonstrated that the objective of protecting the species would be achieved.
10. The Council has not had the opportunity to determine whether it is prepared to accept dedication of the corridor and does not have any understanding of the maintenance required or the costs involved. It may be that a different management regime could be incorporated such as a Community Title arrangement, however this was not pursued. It would be unreasonable of the Court to impose such responsibilities on a local authority without firstly being satisfied the outcomes of protecting the species would be achieved and not understanding the long-term implications.
11. Clause 7.9 of the LEP relates to Essential Services and, for consent to be granted, the Court must be satisfied that the services essential for the development are available or that adequate arrangements have been made to make them available when required. I cannot be satisfied that the site can be serviced by water and that it will be possible to dispose and manage sewage. Whilst there are both water and sewage services within the township of Corowa, those services are not of the necessary capacity that would make them available when required for the various stages of the subdivision.
12. The applicants initially attempted to address this matter through the letter of offer made to enter into the VPA. It is unfortunate that this offer was made at such a late stage. The Council had only one opportunity to consider the offer and resolved not to enter into the agreement due to the likely financial risk associated with the terms. Had the offer been made when the application had been lodged in 2020, it may have been possible to negotiate an outcome that would have been to the satisfaction of the applicants and the Council, however this did not occur.
13. Accordingly, I cannot find that adequate arrangements have been made to make available the supply of water or the disposal and management of sewage from the development when these services are required. This is a prerequisite to consent being granted and cannot be left to a condition of consent.
14. For these reasons, the application must fail and consent must be refused.
15. The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2020-162 for the subdivision of land into 306 residential allotments, two drainage reserves, three public recreation reserves with associated roads, footpaths and infrastructure works over 13 stages at Lots 1 and 2 DP 199174 and Lot 66 DP 1167493 known as 169-199 Redlands Rod and 42-80 Cemetery Road, Corowa is refused. 3. The exhibits, other than A, C and 1, are returned. …………………………. Sue Morris Acting Commissioner of the Court

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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: 29 October 2021