Broken Head Coastal Foundation Pty Ltd v Byron Shire Council

Land and Environment Court (NSW)|2004-05-17|Before: Mr J

CITATION : Broken Head Coastal Foundation Pty Ltd v Byron Shire Council [No. 2] [2004] NSWLEC 279 APPLICANT Broken Head Coastal Foundation Pty Ltd PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 10499B of 1998 CORAM: Nott C KEY ISSUES: Development Consent :- Whether s 94 contributions can be levied in respect of a s96 modification application - reasonableness LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 94 & 96 CASES CITED: Broken Head Coastal Foundation Pty Ltd v Byron Shire Council [2004] NSWLEC 233; Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266 DATES OF HEARING: 17 May 2004 EX TEMPORE 05/17/2004 JUDGMENT DATE :

APPLICANT Mr J J Bingham, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr S M Berveling, barrister SOLICITORS Abbott Tout

Broken Head Coastal Foundation Pty Ltd Applicant v Byron Shire Council Respondent

After a two-day hearing, I gave judgment on 19 March 2004 in this matter, indicating that consent would be granted subject to certain conditions, most of which had been agreed to by the parties. See Broken Head Coastal Foundation Pty Ltd v Byron Shire Council [2004] NSWLEC 233.

The main outstanding matters that were to be considered by the parties, and draft final orders submitted to the Court if possible by agreement, related to whether there was a need for further detail concerning the proposed sub-surface compensating drip system referred to in par 30 of that judgment; and the second matter related to the vegetative corridor referred to in par 32.

The parties could not agree as regards the final form of the conditions, although quite extensive conditions were in fact agreed to. During submissions I indicated that I would prefer the applicant's versions of the disputed conditions.

The main condition in dispute, raised for the first time after the delivery of my reasons for judgment on 19 March 2004, relates to contributions under s 94 of the Environmental Planning and Assessment Act 1979. The council now seeks quite substantial contributions, over and above the contributions that were previously paid.

During the substantive hearing on 18 and 19 March 2004, there was no issue or matter raised concerning s 94 contributions, and I gave judgment dealing with all matters in dispute, subject to the qualifications I indicated earlier. It seems to me now to be quite inappropriate that the council should seek to raise the question of s 94 contributions.

It would appear that it is not possible for the Court of its own motion to impose additional s 94 contributions upon determining an application under s 96. See Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168; (2002) 124 LGERA 349 at 358.

In the substantive hearing before me, there was no submission made that the subject s 96 applications (being the third and fourth applications made since I first granted development consent in December 1998) should be dismissed unless the applicant voluntarily sought to amend the contributions.

If my recollection is correct, there have been a number of decisions in this Court where, under s 96, amendments have been made to the amount of contributions. But in each case, as far as I am aware, the amendments were made at the request of the applicant. A case in point might be where a subdivision application is granted for a certain number of lots and subsequently the subdivider seeks to decrease the number of lots and also seeks to have an amendment to the contributions payable in respect of the fewer lots.

There was no evidence put before the Court as to whether contributions could be legitimately levied. The s 94 contributions plan was not tendered.

Having regard to the circumstances of this particular case where the applicant is providing an environmentally friendly private education facility on a very large parcel of land of 111 ha which has to be maintained, and flora and fauna protected, one must ask the question whether it would be reasonable to require contributions of the kind now sought in addition to what has already been paid.

Even if there is a power in the council to impose contributions in accordance with a s 94 plan for a private education facility, this Court in hearing an appeal by an applicant concerning the reasonableness of the contributions can in an appropriate case decide that the contributions, even though levied in accordance with the plan, are unreasonable: Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266.

In the circumstances, I propose not to levy any addition s 94 contributions. No adjournment was sought by the council in order to as it were embark upon a new hearing, which would be needed if it were seriously intended that additional contributions be levied.

Accordingly, I make the following orders:
1. Pursuant to s 96 of the Environmental Planning and Assessment Act 1979 , the development consent granted by order of the Court on 8 December 1998 for a private education facility on lots 2 and 5 DP 729112 at 951 Broken Head Rd, Broken Head (as modified by the Court on 6 July 2001 and 10 March 2003) is further modified by deleting the undated Annexure A (as modified) to that order and replacing it with Annexure A dated 17 May 2004 (attached hereto).
2. In addition to the exhibits referred to in previous orders, the following exhibits are to be retained: N2, N14, NA, NC, NJ, NN, NR and NS. ____________ A J Nott Commissioner of the Court rjs

Annexure A - 17 May 2004 Conditions of consent Broken Head Coastal Foundation Pty Limited v Byron Shire Council

DEVELOPMENT APPLICATION NO 98/0146 - PROPOSED PRIVATE EDUCATION FACILITY AT LOTS 2 & 5 DP 729112, No 951 BROKEN HEAD ROAD, BROKEN HEAD

A. Approved plans. Development to be generally in accordance with the following plans (prepared by The GeoLINK Group Pty Ltd unless otherwise stated): (1) plan Exhibit 3.1, plan Exhibit 3.2.1 and plans Exhibits 3.2.8 to 3.2.17 inclusive (all part of exhibit A) as amended on 25/11/1998 by plan exhibit C showing relocated building numbers 23 and 27; (2) plan Figure 3 S96:Buildings 2-12 (Type A) dated [5 April 2001]; and plan Figure 4 S96:Buildings 13-22 (Type B) dated [5 April 2001]. (3) plan Figure 5 Building 1, plan Figure 6 Building 1, plan Figure 7 Building 1 (all part of exhibit R); (4) coloured plan Exhibit 4.5 (part of exhibit A) as amended by sketch detail Exhibit 4.5A (exhibit NR); and (5) plan Exhibit 4.7 (part of exhibit A) as amended by plan Exhibit 4.7A Revised Issue 01.03.04 (exhibit N2) by replacing the "Area for irrigating reclaimed water" with the "Proposed New Irrigation Areas", and as modified by any conditions of this consent." [Note: For clarification, the original development application plans are in a wire-bound volume tendered in the hearing in 1998 as exhibit A (which was again tendered in the fourth s 96 application as exhibit NA). Within this exhibit A, many of the applicant's plans were described by the applicant with the caption "Exhibit…" (e.g., "Exhibit 3.1" or "Exhibit 3.2.1" etc).] B. The following conditions will be required to be provided for in the building application or construction certificate plans submitted for approval.

Nomination of the external roof and wall cladding materials, which must be non-reflective, and in earth-tone colours, suitably integrated to complement the amenity of the area. Suitable colours must be nominated on the plans and may include browns, greens, greys, dark beige, gold tones and autumn reds. Brickwork incorporating very strong colours or strong contrasts in colour should be avoided.

C. The following conditions will be required to be complied with before the release of any building application or construction certificate.

C1 A certificate, addressed to Council by a practising Structural Engineer specialising in Soils Mechanics, and prepared in accordance with AS 1726: (a) Certifying that the site is stable and will not be affected by landslide or subsidence above or below the site when the building is erected; and (b) Identifying existing sub-surface conditions and specifying foundation details appropriate for these conditions and the building proposed. (c) The following requirements are to be addressed in the geotechnical report to be submitted to the satisfaction of Council:- (i) These requirements will apply to all Building Applications with the exception of those incorporating only minor additions or alterations or the construction of relatively small buildings (e.g. lawn lockers, carports, sheds) providing that Council is satisfied that no risk of subsidence or ground slip exists on the premises. (ii) The report must be prepared by a suitably qualified engineer, acceptable to Council, specialising in geophysical sciences. It must show by diagram the location of test drill holes for any excavations to be made and clearly state the result of all subsequent tests of soil samples in a format acceptable to Council. The safe bearing capacity of the soil at any particularly depth must be clearly stated. (iii) The report is required to provide a site plan of the property, to scale, clearly identifying the proposed building site and certifying the safety of that site and/or alternate sites for ancillary buildings. (iv) The report must make specific comment on the maximum depth of any cut or excavation, which is allowable to be made in conjunction with the proposed building(s). It should also clearly indicate the required angle or slope (i.e. batter) for any benching or earth wall, or whether such slope is required to be retained by a retaining wall. (v) The report must specify the type(s) of retaining wall to be used (to be designed by a structural engineer) for the site and, where applicable, those types of retaining walls that should not be used in view of any geotechnical circumstances associated with the site. (vi) The report is required to identify any specific area(s) on the site where excess earth or earth filling (if proposed) may be safely deposited. Details of maximum depth, compaction, angle of repose, of such earth fill must be stated. Regard to the safety of the proposed building(s), the site itself, and any adjacent sites or buildings must be made. (vii) The report is required to state if any particular style of building design or material is preferred and/or whether any particular style or design of building should not be used, having regard to the long-term safety of the building. (viii) The report must specifically deal with the method, which may be used for safe disposal of all roof waters, where such waters cannot be disposed into a storm water drainage system of the Council. (ix) Council will reserve the right to refuse to accept any report, which does not comply with these conditions and may require a further report or an alternate opinion on the technical detail of the report, where it is not satisfied that the required Information has been provided. (x) Every engineer specialising in geophysical sciences and preparing report for the consideration of Council is required to provide written evidence with the report of their holding an Insurance policy to the value of $5M ($5,000,000) indemnifying him/her against professional negligence.

C2 An engineering plan is required in triplicate showing all new internal roads alignment, the location of drainage structures, section of road with grade greater than 20% and cross- section types. The minimum requirements for internal road design is 3.5m width, gravel base material and a two (2) coat bitumen seal for grades in excess of 20%. The roads are to be constructed and drained to ensure all weather access. Parking areas are to include allowance for vehicular circulation and be constructed to the same standard as internal roads. All internal roads with a grade in excess of 20% shall be sealed with a two (2) coat bitumen seal.

C3 That the contributions as set out in the attached Schedule be paid.

C4 Submission of a Soil and Water Management Plan (SWMP) for both construction and post construction phases. The SWMP shall be prepared In accordance with the Department of Housing's "Managing Urban Stormwater" and approved by Council.

C5 An Environmental Management Plan (EMP) shall be prepared and submitted to Council for approval prior to the release of any building approval. The EMP shall address, but shall not be limited to the following: (a) Performance objectives; (b) Wastewater management controls; (i) hydraulic loading rates on the treatment plant and irrigation area; (ii) treatment plant operation and maintenance; (iii) monitoring of the treatment plant effluent quality; (iv) monitoring of hydraulic loads and actions to ensure that the maximum hydraulic loading is not exceeded; (v) monitoring of environmental parameters including baseline monitoring of groundwater and vegetation; and (vi) minimisation of the potential for nuisance insects. (c) Contingency plan for any non-conformance; (d) Reporting procedures; (e) Staffing and training requirements; and (f) Quality assurance.

C6 (a) The combined total maximum volume of sewage generated by the following premises and treated by on-site wastewater treatment facilities shall not exceed 6,000 litres per day: + The Centre; + All accommodation units; and + Any other buildings, which do not contain compost toilets. Details are to be submitted for Council's approval prior to the release of any building approval regarding the proposed measures, including water metering, to be implemented to ensure compliance with this condition. (b) Subject to compliance with conditions G1, G2 and G3, the limit of 6,000 litres per day shall be increased to 16,800 litres per day.

C7 The applicant shall, to the reasonable satisfaction of Council and the NSW National Parks and Wildlife Service, comply with items 3 and 4 of the Site Management Strategy set out on pages 19 and 20 of the "Archaeological Study of Proposed Educational Facility, Lots 2 and 5 DP729112, 951 Broken Head Road, Broken Head" prepared by Mary Dallas dated November 1998, in exhibit E.

C8 Prior to release of building approval documentary evidence is to be submitted that the necessary Pollution Control Approval has been obtained from the Environment Protection Authority (EPA) for constructing an effluent irrigation system.

C9 Details of fire amelioration works for retreat Building No 28 are to be submitted to the reasonable satisfaction of Council's Fire Control Officer. Amelioration works are to rely on methods other than tree and shrub removal.

C10 The margins of water bodies shown on plan Exhibit 3.2.1 are to be re-vegetated with native plants natural to the area to reduce the extent and occurrence of introduced grass / pasture adjacent to water, to reduce habitat suitability for cane toads. Details are to be submitted for the approval of Council prior to the release of any building approval.

C11 All stock grazing will be confined to the two grazing paddocks shown in plan Exhibit 1.2 and connecting corridor linking these two paddocks shown on plan Exhibit 4.5, by stock proof fencing. Water supply to these paddocks will be through pipes and troughs. Vegetation remnants around the edge of the southern grazing paddock will be excluded from the grazing area. Details are to be submitted for the approval of Council prior to the release of any building approval.

C12 A Code of Conduct for recreational / educational use of native vegetation shall be prepared to ensure that: (a) recreation is confined to designated walkways; (b) no destructive use or sampling of vegetation occurs for training purposes; (c) surveys for threatened species are undertaken before any walkways are constructed through native vegetation and any threatened plant populations detected are protected. Details are to be submitted for the approval of Council prior to the release of any building approval. C13 A detailed vegetation plan for the purpose of the plan Exhibit 4.5 shall be prepared and submitted for the approval of Council. The plan shall address the following matters: (a) include a map showing the likely original vegetation community distribution in proposed re-vegetation areas; (b) amend plan Exhibit 4.6 to provide a list of local native plant species suitable for planting in each mapped community type; (c) amend plan Exhibit 4.6 to provide a list of the ecological function (habitat tree, pioneer species, food plant) of all species listed: (d) provide specific details of tree and shrub density; (e) provide detail of methods to be used for grass and weed control in re-vegetation areas, including both 'assisted regeneration' and re-planting areas; (f) distinguish between re-vegetation areas and landscape areas, the former being the restoration of natural vegetation community floristics and structure, and the latter the use of native and exotic plants for visual landscape purposes.

D. The following conditions are to be complied with prior to the commencement of Building Works.

D1 Implementation of Soil and Water Management Plan (SWMP) subject of Condition C4.

D2 A potable water supply is to be provided to all premises (excluding the 'Chapel' building). Approval is to be obtained through an application to Council under Section 68 of the Local Government Act 1993.

D3 Prior to commencement of construction, approval must be obtained through an application to Council under Section 68 of the Local Government Act 1993 for the installation of a sewage management facility (compost toilets). E. The following conditions are to be complied with prior to occupation of any building /commencement of use.

E1 The driveways, access aisles and parking areas are to be constructed in accordance with plans approved by the Development Engineer. E2 All internal roads, sealing of existing roads (as required in accordance with Condition C2), access to buildings, parking areas and vehicular circulation areas are to be constructed to the satisfaction of the Development Engineer. E3 The consolidation of all separate parcels of land into one allotment under one title registered with the Land Titles Office. E4 Completion of fire amelioration works for retreat Building No 28 to the reasonable satisfaction of Council's Fire Control Officer. F. The following conditions will need to be complied with at all times.

F1 The applicant will provide to the Council at the beginning of each year for a period of three years the intended or proposed program of private education which will occur at the site for the following six to twelve months.

F2 The applicant will provide to Council an annual report at the end of each twelve-month period from commencement of the facility for a period of three years, the actual program of private education, which took place on the site in the preceding twelve-month period.

F3 (a) No more than 72 people will be accommodated on the site at any one time and such people will be engaged only in private education and any activity ancillary thereto. (b) Subject to compliance with conditions G1, G2 and G3, the limit of 72 people shall be increased to 112.

F4 (1) No motor vehicle shall be parked anywhere on the site other than in the designated car parking areas. (2) A total of 69 off-street carparking spaces are to be provided and maintained in association with the development. 57 are to be located in the vicinity of the Centre building generally as indicated on the Work as Executed Plan prepared by Smith and Wallace Consulting Engineers numbered 0219-1-98 Drawing No, Z1A dated 15 March 1999 (part of exhibit NC) in the approval of Byron Shire Council and a further 12 carparking spaces being located towards the centre of the site in the location generally illustrated in the abovementioned plan.

F5 None of the retreat buildings will be used for food preparation or overnight accommodation.

F6 Chapel to be used for passive recreational purposes only with no accommodation allowed. The site to be landscaped to Council's reasonable satisfaction.

F8 No vehicular access to Seven Mile Beach Road is permitted from the site.

F9 Any stock grazing is to be carried out in accordance with Condition C11.

F10 Recreational / educational use of vegetation shall be carried out in accordance with the Code of Conduct submitted as required by Condition C12.

F11 All works to be designed and constructed to at least the minimum requirements of Council's "Specification for Engineering Works."

F12 (a) The combined total maximum volume of sewage generated by the following premises and treated by on-site wastewater treatment facilities shall not exceed 6,000 litres per day: + The Centre; + All accommodation units; and + Any other buildings, which do not contain compost toilets. (b) Subject to compliance with conditions G1, G2 and G3, the limit of 6,000 litres per day shall be increased to 16,800 litres per day.

F13 A 20m inner radiation zone measured from the outer wall of the building is to be kept free of all combustible undergrowth and ground litter which must not exceed a level of 0.5 kg per square metre. Combustible trees should not form a continuous canopy or line between the fire source and the building. All fire suppressant rainforest trees and shrubs should be retained within this area. To the reasonable satisfaction of Council's Fire Control Officer.

F14 A 20m outer radiation zone measured from the perimeter of the inner radiation zone is to be maintained. Ground litter must be kept at a level not to exceed 0.5 kg per m2 to the reasonable satisfaction of Council's Fire Control Officer.

F15 An adequate turning circle area of 20m diameter or equivalent manoeuvring space is to be constructed in accordance with Council's specification of Engineering Works. Area to be kept clear of all obstruction.

F16 All under-floored areas to be enclosed with metal gauze or other approved suitable materials.

F17 All eaves are to be boxed in and gutters maintained free of litter.

F18 All waste in the waste collection corral is to be contained in sealed waterproof receptacles.

F20 Only clean and unpolluted water being permitted to discharge to Council's storm water drainage system or any watercourse.

F21 Separate development consent is required for the use of the existing shed located to the south of the property for any purpose other than a shed.

F22 Construction works are to be limited as follows: (a) Monday to Friday, 7 am to 6 pm. (b) Saturday, 7 am to 1 pm if inaudible on residential premises, otherwise 8 am to 1 pm. (c) No construction work to take place on Sundays or Public Holidays.

F23 Construction noise is to be limited as follows: (a) Construction period of four (4) weeks and under. The L10 level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 20 dB(A). (b) Construction period greater than four (4) weeks and not exceeding twenty-six (26) weeks. The L 10 level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 10 dB(A).

F24 The LA 10 noise level emitted from the premises shall not at any time exceed by more than 3dBA the LA90 noise level measured at the nearest wall of any neighbouring dwelling.

F25 The applicant shall provide, maintain and use no more than 2 pedestrian access points from the subject property to Seven Mile Beach, being the existing access point adjacent to the Centre and an access point adjacent to the primitive camping ground at a location to the reasonable satisfaction of council.

F26 The Applicant shall comply with Item 5 of the Site Management Strategy referred to in Condition C7.

G1 The following conditions are to be complied with prior to the increase in the total maximum volume of sewage referred to in conditions C6 and F12 from 6,000L per day to 16,800L per day: (1) Prior to installation and operation of the irrigation areas referred to in plan Exhibit 4.7A Revised Issue 01.03.04 (exhibit N2) approval must be obtained from Council under section 68 of the Local Government Act 1993 for the installation and operation of such irrigation areas. (2) The existing approved irrigation areas referred to in plan Exhibit 4.7 shall be decommissioned and infrastructure removed after both of the following have occurred: (a) Council grants section 68 approval in accordance with this condition; (b) The construction, installation and commissioning of the irrigation areas shown in plan Exhibit4.7A has been completed.

G2 The following conditions must be complied with at all relevant times: (1) The existing soil 'field capacity' shall be determined by standard laboratory procedures for areas 3 and 4. Three uniformly spaced samples shall be collected from each area (6 samples total) as composites from depths of 150 mm and 500 mm below the surface. This data shall be used to "calibrate" the field soil moisture meters that will control soil moisture and irrigation applications. (2) The maximum volume of wastewater to be generated by the site for effluent irrigation shall be 16,800 L/day. (3) The minimum total effluent irrigation area, comprising of areas 3 (2.9 ha) and 4 (0.873 ha) shall be 3.773 ha. (4) Effluent shall be applied to each, or part thereof, of the irrigation areas rotationally (as required to satisfy site irrigation hydraulic design requirements) on a daily basis such that the rate of application does not exceed 2 mm/day for any portion of an irrigation field and does not exceed 0.45 mm/day as a daily average, determined over any 90 day period, for the total field area (combined area of area 3 and 4). (5) Effluent irrigation will be by way of a sub-surface pressure compensating drip system, and shall only be drawn from the Final Effluent Irrigation Tank at the STP. (6) The effluent irrigation scheme will include a pressure burst protection system. This shall cause all irrigation to cease in the event of a line burst. (7) A 40m-setback distance between any effluent irrigation field and any permanent or intermittent stream will be maintained at all times. A setback distance of 6 m shall be maintained between any effluent disposal area and site roads / driveways. (8) A 1.5 ML lined treated effluent storage dam (DAM) will be provided for temporary storage of treated effluent during periods of wet-weather, elevated soil moisture or elevated groundwater tables. (9) No irrigation is to occur during wet-weather unless the DAM is full. When the DAM is full and wet-weather conditions persist, effluent irrigation is permitted at a rate of 1 mm/d. This should be activated by a level sensor located in the DAM. (10) No irrigation is to occur during elevated soil moisture conditions unless the DAM is full. Elevated soil moisture conditions are defined as being times when soil moisture exceeds 80 % of the irrigation area soil field capacity. (11) Soil moisture shall be continuously monitored by soil moisture probes, being uniformly spaced and representatively positioned at 350 mm depth below the surface. Two probes are to be located within Area 3 and two Probes within Area 4 (4 probes total). (12) When the DAM is full and elevated soil moisture conditions persist, effluent irrigation is permitted at a rate of 1 mm/d. This should be activated by a level sensor located in the DAM. (13) No irrigation is to occur in any irrigation area affected by elevated groundwater table conditions. Elevated groundwater is defined as being equal to or less than 500 mm separation distance below the effluent dripper line and should be independently and continuously monitored. Irrigation should be interrupted by means of a water level sensor located in a monitoring well within areas 3 and 4. If an irrigation area is affected by elevated groundwater, the irrigation rate onto unaffected areas is to reduce to 1mm/day, and the balance of generated water stored in the DAM. (14) If the DAM is full and elevated groundwater conditions persist, effluent irrigation is permitted at a rate of 1mm/d. This should be activated by a level sensor located in the DAM.

Sewage Treatment Plant (STP) (15) A 10,000 L aerated flow balance tank shall be installed to provide for improved flow balancing. This shall be fitted with 0.5 - 1.0 L/s submersible grinder pumps and inlet wedge wire rundown screen, and sludge return from aeration tank. (16) The sludge drying beds shall be increased such that a total of three (3) beds are provided, each with an area of 3.4 m2, and a capacity to fill with 750 mm depth of wet liquid sludge. The sludge drying beds shall be fitted with scour pads, under drains flowing to the flow balance chamber and a surface sacrificial sand layer of 200 mm total depth. (17) The existing Alum dosing system shall be decommissioned and be replaced with a Sodium Aluminate dosing system utilizing existing dosing equipment, to encourage neutral operating STP pH and assist with biological nitrogen removal. (18) The STP shall be provided with an automatic oxygen control system to ensure enhanced biological nitrogen removal. (19) A suitable sand filtration system shall be installed immediately downstream of the existing sand / gravel filter. This shall be a minimum depth of 1000 mm, provide an effective grain size of 0.45 - 0.55 mm and uniformity coefficient of < 1.6, and maintain filtration rates of < 150 L/m2/minute. (20) Effluent quality from the STP shall be: Parameter Value (90th Percentile) pH 5.5 - 8.5 Suspended solids (mg/L) <30 BOD5 (mg/L) <20 Total Nitrogen (mg/L) <10 Total Phosphorus (mg/L) <1 Faecal Coliforms (CFU/100mL) <30

Environmental Monitoring Plan (21) Seven (7) groundwater monitoring bores shall be established to a minimum depth of two (2) m into the local groundwater table and include two (2) in area 3, two (2) in area 4, one (1) upslope of area 4, and one (1) downslope of area 4 and one (1) down slope area 3. (22) All groundwater-monitoring bores shall be licensed as required by DIPNR under Part V of the NSW Water Act. The local DIPNR groundwater professional must be consulted regarding the location and establishment of the monitoring bore-field, as appropriate. (23) Groundwater shall be monitored at monthly intervals for a period of three (3) months from each monitoring bore prior to the application of any treated effluent (3 samples total from each monitoring bore). For each field, a geometric mean value (GMV) for each measured parameter should be determined and this GMV shall be used as a trigger value for future monitoring and irrigation scheme performance evaluation. This is known as the 'pre-establishment' period. (24) Following commissioning of the effluent irrigation scheme, groundwater quality shall be monitored from each bore for a 'proving' period which incorporates sampling at three (3) monthly intervals during an initial year. Following the 'proving' period, monitoring can be reduced to a single annual sample from each bore.

(25) Groundwater samples should be analysed during the pre-establishment and operational monitoring periods for the following: Parameter Units pH - Electrical conductivity (EC) dS/m Oxidised Nitrogen mg/L Ammonia Nitrogen mg/L Kjeldahl Nitrogen mg/L Total Nitrogen mg/L Total Phosphorus mg/L Faecal Coliforms CFU/100 mL

(26) Following each sampling period, groundwater samples should be compared to the relevant trigger value (to be determined in the 'pre-establishment' period). Where trigger values are exceeded, remediation in accordance with the environmental contingency plan shall be undertaken and the 'proving' period shall be re-started. (27) Soil samples shall be collected from each irrigation area prior to the application of treated effluent. Three (3) representative sites shall be chosen within both area 3 and 4, and a sample shall be collected at each site at a depth of 150 mm and 500 mm below the ground surface. For each field, a GMV for each measured parameter should be determined and this GMV shall be used as a trigger value for future monitoring and irrigation scheme performance evaluation. This is known as the 'pre-establishment' period. (28) Following commissioning of the effluent irrigation scheme, soil samples shall be collected from each sample location at depths of 150 mm and 500 mm below ground surface for a 'proving' period which incorporates sampling at three (3) monthly intervals during an initial year. Following the 'proving' period, monitoring can be reduced to a single annual sample from each sampling site at depths of 150 mm and 500 mm below ground surface. (29) Soil samples should be analysed during the pre-establishment and operational monitoring periods for the following: Parameter Units pH - Electrical conductivity (EC) dS/m Oxidised Nitrogen mg/L Ammonia Nitrogen mg/L Kjeldahl Nitrogen mg/L Total Nitrogen mg/L Total Phosphorus mg/L

(30) Following each sampling period, soil samples should be compared to the relevant trigger value (to be determined in the 'pre-establishment' period). Where trigger values are exceeded, remediation in accordance with the environmental contingency plan shall be undertaken and the 'proving' period shall be re-started. (31) STP effluent quality shall be assessed using samples collected from the final effluent irrigation tank. This tank shall only receive filtered and disinfected effluent drawn from the DAM. Monitoring shall be undertaken for an initial 'proving' period which incorporates sampling at weekly intervals during an initial two (2) month period or extends for sufficient time to ensure that STP effluent performance criteria are met. Following the 'proving' period, sampling shall be undertaken every two (2) months for the life of the effluent re-use scheme. (32) Where STP effluent fails to meet design effluent quality given above, works shall be undertaken in accordance with the site environmental contingency plan and site environmental management plan such that STP effluent quality can conform with design performance criteria. Where STP effluent fails performance criteria, the STP monitoring 'proving' period shall be re-instated.

Environmental Contingency Plan (33) An environmental contingency plan (ECP) shall be developed for council approval in accordance with best industry practice and be based on the concepts presented in Appendix A of the report prepared by Simmonds & Bristow dated 11th February, 2004, titled " Effluent Irrigation Areas System Arrangement and Concept Management Plan " and the conditions listed here. (34) The ECP shall make reference to relevant STP, groundwater and soil trigger values, and identify the range of likely risks and the remedial procedures required to address and manage these risks.

Site Management Plan (35) A consolidated site management plan (SMP) shall be developed for the site for Council approval in accordance with best industry practice and incorporate the ECP and other clauses detailed in this agreement. (36) Site management requirements shall include: (i) Regular servicing and maintenance of the STP by the STP operator in accordance with the report prepared by Simmonds & Bristow dated 11th February, 2004, titled " Effluent Irrigation Areas System Arrangement and Concept Management Plan " and the conditions listed here. (ii) Regular servicing & maintenance of the sewage pumping station (SPS) and flow balancing tank (FBT) concurrently with servicing & maintenance the STP. (iii) Maintenance of a sewage management scheme log book (LB). (iv) The LB shall include records of raw sewage generated. (v) The LB shall include records of treated effluent irrigated. (vi) The LB shall record all environmental incidents and remedial actions undertaken. (vii) The LB shall record any STP faults and remedial actions undertaken. (viii) Local daily weather conditions. (ix) Regular maintenance of the effluent irrigation areas (x) Excess vegetation is removed to a location outside of the effluent irrigation areas. (xi) Entries of data in the LB are to be weekly. (xii) The LB can be paper or electronically based. (37) An annual environmental report should be prepared by a suitably qualified person or organization and submitted to Council. The report should include the following: (i) A summary of environmental monitoring and effluent irrigation scheme performance. (ii) A summary of SPS, FBT and STP breakdowns, remediation measures undertaken and their effectiveness. (iii) Photocopies of all environmental and STP monitoring laboratory results data. (iv) Photocopies of the irrigation scheme LB for the period covering the reporting period. (v) Recommendations for changes to site management where required.

G3 The Code of Conduct (condition C12) shall be amended to ensure that the following matters are taken into account: (1) Problems associated with traffic affecting fauna (including threatened species); (2) Any visitors walking into SEPP26 and SEPP14 areas and disturbing or picking native plants or disturbing nesting and foraging activities of fauna (threatened species); and (3) No undue disturbance of dunal rain forest areas and nesting/foraging activities of fauna (threatened species) in those areas.

SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

Open space-embellishment 9.25 ET@ 81 = . $750 Community facilities 9.25 ET@ 850 = $7,863 Bushfire brigade augmentation 9.25 ET@ 177 = $1,638 Shire-wide community facility-Council offices 9.25 ET@ 250 = $2,313 Total $12,564

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(2002) 124 LGERA 349

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Judgment (75 paragraphs)

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