Camilleri v Wollondilly Shire Council

Land and Environment Court (NSW)|2016-10-18

Solicitors: Mr G Shapiro Henry Davis York (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 161100/2016

The site and its context

The site is located at the end of River Road, Tahmoor around 1.7km from the River Road and Remembrance Drive intersection. Approximately 78% of the site has been cleared with the remainder vegetated. That vegetated area is primarily located along the eastern and northern boundaries of the site adjacent to the Nepean River and Myrtle Creek.
Land to the immediate north, east and south comprises gorges with steep inaccessible land containing dense vegetation. Bargo River and Myrtle Creek form confluences with the Nepean River. A large natural pool is located at the confluence of the Nepean and Bargo Rivers. One watercourse traverses the site, running in an east to west direction. There are five watercourses that start from within the site.
Beyond Myrtle Creek are an abattoir and a poultry farm. To the west of the site is another poultry farm. South of the site beyond the Bargo River are a number of dwelling houses and the land is used for rural residential purposes. To the east, on the opposite side of the Nepean River there are a number of land parcels being used for residential purposes. These lots are generally densely vegetated towards the rear (river) of the site and dwellings located towards the roads.
The combined total area of land is approximately 111 ha. The site is vacant with no improvements apart from unmade roads and a dam. According to the council's assessment report, a dwelling house was removed from the site in May 2015 with other sheds and associated outbuildings demolished sometime prior.
The site is not serviced by a reticulated sewage system and therefore requires onsite methods of disposing of sewage. The council will not accept pumpout systems.

Background and the proposal

The development application was originally lodged with the Council on 22 September 2014 and has been amended on a number of occasions including a reduction in the number of lots proposed, originally being 131.
The site had to be the subject of a Planning Proposal which included the making of a Voluntary Planning Agreement (VPA). That planning proposal proposed the rezoning of the site from RU2 Rural Landscape to part Zone R5 Large Lot Residential and part Zone E2 Environmental Conservation to enable residential and recreational use and conserved ecologically significant land. The Council had resolved to proceed with the planning proposal which had the effect of rezoning the land and introducing a minimum lot size of 4000 m² to that part of the site that would fall within Zone R5.
The associated VPA proposed the payment of contributions or the carrying out of works in kind for roadworks and improvements outside the site so that proper access would be provided and the contribution of funds towards facilities that would be provided within the boundaries of the site.
The VPA provided for a total contribution of $2,514,100 which was to equate to an amount of $22,855.45 for each new residential allotment approved under the development approval. At the time of entering in to the VPA, it was estimated that the site would yield 110 lots. In addition, the developer agreed to pay a section 94 contributions for each residential allotment of $17,144.55.
As a result of the grant of development consent, the total amount payable under the VPA and s94 contributions is $5 million.
The VPA was executed on 12 August 2013 by Mary Camilleri and the then General Manager of the council.

The planning controls

The rezoning application as foreshadowed in the planning proposal proceeded with subsequent amendments made to Wollondilly Local Environmental Plan 2011 (LEP). All of the heavy vegetated area and a narrow band adjacent is zoned E2 Environmental Conservation. The remainder of the site is zoned R5 Large Lot Residential.
Clause 2.3(2) of the LEP requires the consent authority to 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 E2 and R5 zones are as follows: Zone E2 Environmental Conservation • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. Zone R5 Large Lot Residential • To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. • To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future. • To ensure that development in the area does not unreasonably increase the demand for public services or public facilities. • To minimise conflict between land uses within this zone and land uses within adjoining zones.
Clause 7.3 of the LEP is in the following form: 7.3 Water protection (1) The objective of this clause is to maintain the hydrological functions of riparian land, waterways and aquifers, including protecting the following: (a) water quality, (b) natural water flows, (c) the stability of the bed and banks of waterways, (d) groundwater systems. (2) This clause applies to land identified as "sensitive land" on the Natural Resources - Water Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact of the proposed development on the following: (a) the water quality of receiving waters, (b) the natural flow regime, (c) the natural flow paths of waterways, (d) the stability of the bed, shore and banks of waterways, (e) the flows, capacity and quality of groundwater systems. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or (b) if that impact cannot be avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
The site contains two areas identified as 10m wide being the subject of this clause. One follows the watercourse which includes the existing dam and the other to the south of the site.

The issues

The applicant has appealed against a number of conditions. The council has agreed to delete a number of them or to modify them and therefore these are not contested and accordingly, as I have no evidence to the contrary, it is the agreed position of the parties that there is a need to modify the consent in some form, including correcting the number of allotments actually approved. The conditions agreed to be deleted are: 1(13), 1(15), 4(4), 10(8),10(12), 14(2), (3) and (4), 16(3), 18(1) and (2), 19(3) and (4).
The conditions agreed to be modified are conditions 1(17), 3(5), 4(4) and (10), 7(13), 10(5), (6), (11), 17(4) and (5), 19(1), 20(1)c), and 22(4)i).
The matters that remain in dispute are conditions 1(1), 1(4), 1(5), 1(6), 1(7), 1(16), 7(2), 7(3), 22(4) a), b), d), and e).
Condition 1(1) is in dispute as it specifies the number of allotments to be created under the subdivision and conditions 1(4), (5) and (6) require consolidation of a number of the proposed allotments. Condition 1(4) identifies those lots to be amalgamated from two lots into one and 1(5) and (6) detail the way other lots are to be consolidated. The reason for the conditions as detailed in the consent is to ensure sufficient separation from watercourses in accordance with Tables 4 and 5 from the "Environment & Health Protection Guidelines - Onsite Sewage Management for Single Households" and Australian Standard AS 1547 "Onsite Domestic Wastewater Management".
The conditions read as follows: 1(4) The following allotments shall be amalgamated: Lots 319 and 320 to form one (1) lot Lots 322 and 323 to form one (1) lot Lots 324 and 325 to form one (1) lot Lots 508 and 509 to form one (1) lot. 1(5) Lots 505, 506, 507 and 520 shall be combined to form three (3) allotments to be undertaken in the following manner: a) The common boundary of Lots 505 and 506 shall continue across Lot 507 to adjoin the boundary of Lot 508 so that the land area of Lot 507 is shared between Lots 505 and 506. b) The common property boundary between Lots 505 and 520 shall be relocated south of its current location along its junction with Road No.8 by no less than twenty (20) metres and shall continue across Lot 507 so that the land area of the remainder of Lot 507 is shared between Lots 505 and Lot 520. 1(6) Lots 501, 502, 503, 504, 518 and 519: these six (6) allotments shall be reduced to form four (4) allotments in the following manner: a) The common boundary between Lots 518 and 519, 501 and 504 and Lots 502 and 503 shall be maintained in the current location. b) The common boundary between Lots 501 and 502 shall be relocated no less than twenty (20) metres north of its current location. c) The common property boundary of Lots 503 and 504 shall be relocated no less than thirty (30) metres north of its current location. The effect of the changes will result in the land area of Lots 501 and 504 being divided between Lots 502 and 518 and Lots 503 and 519.
Condition 1(7) details the staging of the subdivision and therefore is in dispute due to the numbering of lots and whether consolidation/amalgamation is required.
The council maintains the conditions should be imposed whereas the applicant opposes them, contending all lots are of a suitable size and landform to accommodate onsite sewage. The council offered an alternative condition that required the land forming of those lots subject to the conditions so as to provide an area of appropriate gradient for onsite septic disposal, that area being a minimum of 1500sqm.
Condition 1(16) reads as follows: Land in Stage 6 of the subdivision located east of the 150 metre building envelope buffer line including the land beneath the escarpment shall be: i. Gifted to National Parks & Wildlife Services for creation of a National Park / Reserve ii. Should National Parks & Wildlife Services not wish to acquire the land it shall be gifted to Council and Council seek an appropriate funding source for the purpose of environmental protection or bio-banking in accordance with Council's Dedication of Land Policy.
Mr Seton, for the council, concedes that the condition is unlawful as it is not within the power provided for under the provisions of s80A of the Environmental Planning and Assessment Act 1979 (EP&AAct). He had no instructions to agree to the deletion of the condition.
Proposed Lot 606 includes all of the land within stage 6 that is zoned E2 and also the land below the top of the escarpment. The effect of the proposed condition would be to dedicate the majority of proposed lots in stage 6 including that portion of Lot 608 to NPWS at no cost. It is unclear whether the area of Lots 609 to 615 would satisfy the 4000sqm minimum allotment size once the land was dedicated however this fact was not considered by the council as the condition was imposed contrary to the recommendation of its staff.
The applicant proposes an alternate condition as follows: h) A covenant on the title of Lot 606 which requires the owner of the Lot to sell all land located east of the land marked "Boundary Defined by Top of Escarpment" on the Subdivision Plan by Craig & Rhodes 1770 L07 [08] dated 5 December 2014, to the National Parks and Wildlife Service at market rate, should National Parks and Wildlife Service confirm that they wish to purchase that land at market rate. The covenant should further require that if the parties are unable to agree on market rate, a binding determination of market rate is to be made by a mutually agreed Certified Practicing Valuer.
That condition would only apply to the land below the top of escarpment and not include the land within Lots 609 to 615 that is zoned E2.
Conditions 7(2) and (3) read as follows: (2) The applicant shall reconstruct the existing road pavement in River Road, at no cost to Council, from the intersection of Moorland Road to the proposed subdivision site. The road pavement shall be designed and constructed to conform with Councils Design and Construction Specifications. Details to be included with the engineering design plans for approval by Council, as the Road Authority, prior to the issue of a Construction Certificate. (3) The applicant shall widen the above section of River Road, at no cost to Council, to provide an 8.0 metre wide sealed pavement with a 1.2 metre wide concrete pathway. The road pavement and pathway shall be designed and constructed to conform with Councils Design and Construction Specifications. Details to be included with the engineering design plans for approval by Council, as the Road Authority, prior to the issue of a Construction Certificate.
At the conclusion of the hearing, alternate conditions were proposed by the council as follows: 7(2) Prior to the issue of any subdivision certificate the applicant shall widen the existing road pavement in River Road in accordance with requirements of a Category G2 rural road as specified in Council's Design and Construction Specifications, at no cost to Council, from the intersection of Moorland Road to the proposed subdivision site. Minimum design criteria are as follows: 1. Unsealed shoulders shall be supported by an appropriately designed trafficable pavement. 2. The minimum sealed width shall be 8 m. In the portion of River Road from chainage 590 to the site boundary if the footpath is placed adjacent to the sealed pavement, the sealed pavement may be reduced to 7 m. 3. A 1.2m wide footpath shall be constructed for the full length of River Road. In the portion of River Road from chainage 590 to the site boundary, the footpath can be located adjacent to the sealed pavement. In such circumstances, pedestrians shall be separated from vehicular traffic by a structural kerb and an appropriate safety barrier. 4. The existing pavement shall be rebuilt in the following circumstances: a. Where final road design cross-falls are unsuitable or where levels are above or below the existing pavement level. b. Where there are clear signs of pavement (sealed or unsealed) degradation. c. Where the existing pavement is deemed by a suitably qualified geotechnical engineer as unsuitable for carrying the design traffic load. Details of the proposed road engineering design plans shall be submitted to Council for approval, as the Road Authority, prior to the issue of a Construction Certificate.
The extent of works in both the existing and proposed condition is greater than that detailed in the VPA and accordingly, the applicant opposes this condition submitting that the roadworks should not differ from that detailed in the VPA with any additional works to be paid for by the council. The applicant does not object to the VPA being amended to reflect the additional requirements however says the quantum of funds should not exceed the $5million and has, prior to the hearing, submitted correspondence to the council to that effect. In addition, a further letter dated 11 October 2016 was sent detailing amendments to the VPA (the letter of offer). At the conclusion of the hearing that matter had not been considered by the council. The offer would include all works required to satisfy the condition with reductions in the amount of contributions payable as a result however the council would still receive $5million worth of works/cash contributions.
The council has not assessed the costings of the roadworks as proposed in the amended agreement.
Condition 22(4) relates to the inclusion of appropriate instruments under the Conveyancing Act 1919, primarily instruments that impose restrictions as to user on individual allotments. Subcondition a) requires nomination of building envelopes on the lots that council requires to be consolidated/amalgamated pursuant to the terms of conditions 1(4), (5) and (6); b) requires creation of effluent disposal envelopes; d) and e) apply to those lots that include land zoned E2 and interestingly include a provision that says "No development". The Court assumes this is an error in the consent and that the intent of the condition is to restrict the following form of development on those lots within that part of the land zoned E2, in the case of lots 209, 210, 211, 311, 312, 313, 314, 315, 317, 318, 319-320, 321, 322-323, 324-325, 326, 327, 520, 505-507, 508- 511 and 606 to 615 inclusive: • the construction of a dwelling and any other structures (including all types of fences), • removal of vegetation, • grazing of any animals, • the construction of any earth dams, • the creation/establishment of an asset protection zones, • and any other similar purpose is permitted to be undertaken within the land shown on the approved plan of development shaded to represent the land zoned E2 Environmental Conservation in accordance with the provisions of the Wollondilly Local Environmental Plan 2011 (current version 4 September 2015).
For Lots 314-327, 505, 507 to 511, 520-521 and 606 to 615 inclusive, the first 4 matters and in addition: • any other similar purpose is permitted to be undertaken within the land shown on the approved plan of development located beyond or east of the 150m Offset from Escarpment line.

The evidence

The hearing commenced on site with evidence heard from a number of objectors to the proposal.
One of those persons spoke on behalf of the National Parks Association, Macarthur Branch, which, according to the notes provided is one of the oldest established conservation organisations in New South Wales, having been formed in 1957 to lobby for a National Parks and Wildlife Service (NPWS), which came into being in 1967. The name therefore predates the NPWS with which it is often confused. It has developed into a broad-based community environment organisation with branches across the state. The Macarthur branch was formed in 1975 and its involvement with this site is as a result of its long-standing concerns to protect the Bargo River. The Bargo River Gorge has been listed as an Indicative Place on the Register of the National Estate and has also been listed by the National Trust as a Landscape Conservation Area.
The matters raised are summarised as follows:

site has significant scenic and environmental values that should be preserved and protected for the benefit of the community and the state of New South Wales;
the entry to the site passes through a wild life corridor and therefore an underpass and traffic calming on River Road is required;
all existing trees should be preserved;
the existing dam is a valuable piece of habitat and a resource to the wildlife of the area and should be retained or condition four (10) imposed to ensure relocation of turtle and the like;
a need for a buffer zone to protect the abutting river gorges; that buffer should be a minimum of 150m wide; the buffer will link to the Bargo River State Conservation Area; the buffer should be in public ownership;
there is a need to erect fencing to protect wildlife from the movement of pets;
the site forms part of an area identified in a proposal by the local community as the Bargo-Nepean National Park and should be retained and protected in the natural state;
site drainage should be through a system of drains connected to artificial ponds and wetlands attract wildlife, become a passive recreation resource, remove pollution and protect the river;
buffer area could be used for bio-banking which would ensure its ongoing management even if a National Park were not to eventuate;
the environment is more important than temporarily housing people;
asset protection zones should be measured from the house and not conflict with the aims of the wild life corridor;
the buffer will result in increased property values, reduce fertilisation of weeds in pristine bush and dumping of garden waste and will protect and enhance a very important wildlife corridor leading to the reinstatement of a critically endangered ecological communities, provide for thought walking and access the river and reduce noise and visual pollution through the provision of a gradual transition between urban land and natural landscapes.

Dr D Martens (council) and Mr D Pitronaci (applicant) provided engineering evidence in relation to roadworks. They assisted the Court during the site view and were not required for cross examination. As a result of that evidence, the council agreed to modify certain aspects of the conditions regarding road construction (conditions 7(2) and (3)) however the applicant maintains opposition to paying for extent of works required above that contemplated under the VPA.
Ecological evidence was provided by Ms A Stengl for the council and Mr S House for the applicant and through the joint conferencing process they resolved a number of contentions and agreed to modification of conditions 4(10) that relates to the dam and vegetation removal, condition 19(1) relating to hollow-bearing trees and condition 22(4) with the need for a vegetation management plan, although they did not agree to the extent of the site to which it was to apply. Ms Stengl says it should address activities between the buffer and E2 zoned land whereas Mr House says it should only apply to the E2 zone land. They were not required for cross examination. The Court notes that their most recent addendum report, Exhibit 12, was prepared on the basis that they agreed the VMP applied to the 150m line and was addressed under condition 1(9). Further evidence adduced through the hearing showed that this was not correct and that further amendments to the VMP would be required to address the rehabilitation, conservation and management of the sensitive areas.
Expert town planning evidence was heard from Ms C Brown for the applicant and Ms V Fairley for the Council. It was on the basis of their evidence that a number of contentions were resolved and agreement reached to either amend or delete a number of the conditions. These amendments and deletions were discussed earlier in judgement.
They agree, having considered the joint report of the experts concerning on-site sewage management and effluent disposal that, subject to the demonstration of the ability to deliver appropriate on-site sewage management and waste treatment, approval can be granted to 125 lots as proposed. They do not agree as to whether it has been technically and viably demonstrated that this can occur.
They also agree that there is a need for a Vegetation Management Plan (VMP) to address activities within the E2 Environmental Conservation area however, Ms Fairley says that should extend to that part of the site between the E2 zoned land and the 150m offset from the escarpment line.
In response to a question from the Court, both agreed that the VMP prepared was inadequate and that there were no conditions in the consent that would ensure the long-term maintenance of either the land within the E2 zone or within any buffer that may be appropriate. Mr Howard, for the applicant, agreed that further amendments should be made to the VMP and tendered additional documentation, Tab 3, Exhibit O in an attempt to address the shortcomings of the documentation.
Mr D Pitronaci (Applicant) and Mr R Bennett (council) provided evidence in relation to wastewater disposal. They agreed that a technical viable solution is available for all of the sites covered by the amalgamation/consolidation consent conditions however could not agree on the timing of works to provide a suitable effluent disposal area on each of the lots.

Findings

Through the joint conferencing process and the hearing, a number of the contentions were resolved and it was agreed that the consent should be modified to reflect that agreement. Those matters are detailed above.
It was also conceded by the council that the imposition of condition 1(16) that required the gifting of land was beyond power. I accept that this is the case.
The applicant is prepared to offer that land below the top of the escarpment to NPWS should it ever be required to be incorporated into a National or Regional Park and proposes that its alternate condition, as detailed at [27] be imposed. The condition does not cover the alternate of the land being acquired by the council and this was not discussed during the hearing. The extent of land also varies from that specified in the original condition in that it does not cover the area to the west of the top of escarpment within the E2 zone or the 150m wide building envelope buffer area.
There are a number of matters that require my consideration. They are:

The appropriateness and extent of the land to be made available for acquisition;
The 150m buffer line;
The appropriate means of managing the E2 lands;
Whether the development achieves the objectives of the zones;
The extent of roadworks required and whether a condition pursuant to the provisions of s94 of the EP&AAct should be imposed in addition to the VPA;
Whether landforming to provide suitable areas for onsite sewage management areas should be carried out at subdivision stage or in the absence of that work lots whether the lots subject of the conditions should be consolidated/amalgamated.

The environmentally sensitive lands/buffer

It is common ground that the council's condition that requires gifting of land is contrary to the provisions of s94 of the EP&AAct and is not a condition that can be imposed under s80A. The land is not identified for acquisition under the council's Contribution Plan. Therefore there is no power to impose that condition and either it is deleted in full or an alternate condition imposed.
The applicant is prepared to place a restriction to user on the title of proposed Lot 606 that has the effect of making part of the lot available to NPWS if and when it wishes to acquire the land at market value. That part of the allotment is the area of land to the east of the top of the escarpment however does not include that portion of the site between the top of the escarpment and a line drawn 150m west from the boundary of the E2 zone with the R5 zone. That is the 150m buffer area and it forms the eastern portion of proposed lots 609-615.
Part of the area to which the original condition referred to is within the E2 zone and the remainder is the 150m buffer, all of which is in the R5 zone. The applicant opposes loss of that land and submits that it is adequately protected through the zoning provisions of the E2 zone in terms of the range of development that can take place and the works identified within the VMP with additional clarification of the extent of that work and the imposition of further restrictions as to user on the title of those lots that identify the maintenance regime for the E2 land and the buffer area.
It is apparent to the Court that the consent as granted did not in fact guarantee the long term maintenance of the E2 land other than that land that had been identified by the council as being gifted to NPWS or the council for bio-banking purposes (Stage 6 only).
The VMP did not propose any long term management structure for that E2 land that would form part of the lots within earlier stages nor did the consent conditions that required restrictions on the use of the land include any reference to the VMP. The parties agree that this should be addressed through amending the VMP and preparing a "plain English" restriction to user on the titles of the affected lots (including those in all stages, not just stage 6) that explains what can and cannot be done in the zone and how the land is to be maintained.
In order to determine the extent of land required to ensure that the ecological and amenity values of the area are preserved, the report considered by the council in relation to the planning proposal that led to the rezoning of the land is of assistance (Exhibit P). At page 88 the report considers the extent of land to be within Zone E2 is adequate to protect existing remnant native vegetation, the gorge environment and to provide a fauna movement corridor above the gorge. At page 89 it states that future management of the land to be within Zone E2 shall be determined with a future development application. At this time council does not support the dedication of the land to council for care, control and ownership….The vegetated buffer of land to be zoned E2 shall adequately separate and screen future buildings as viewed from within the gorge and contribute to screening of light sources from the site as viewed from the opposite side of the gorge.
At page 91 it states the proposed Zone E2 is a minimum width of approximately 150 metres to the gorge with the area of land within the site proposed to be within that zone of approximately 19 hectares. The proposal represents a balance between development of the site for rural residential purposes and the revegetation, protection and conservation of remnant native vegetation and the gorge area. the aesthetic value of the gorge is noted and is reflected in the application of Zone E2 to part of the site.
The report also considered options for management of the E2 land under community title but did not incorporate that within the LEP and it also acknowledged bio-banking as another option however did not progress this either. At page 97 it states that land to be in Zone E2 is to be protected for its ecological value. Land to be in Zone R5 has the potential to be subdivided into lots of more than 4,000 square metres and of sufficient size an dimensions to accommodate asset protection and hazard reduction within each lot.
Specific consideration of the buffer to the Bargo and Nepean Rivers was provided at page 105 and states the proposal seeks to rezone approximately 19 hectares of ecologically sensitive land located along the eastern, northern and southern boundaries of the site for environmental conservation providing a total buffer of 250-330m to the Bargo and Nepean Rivers. Zone E2 has been enlarged and extended to increase the buffer to the top of the gorge and provide an effective wildlife corridor both within and above the gorge.
Finally, the resolution passed by the council which adds an additional clause to the recommendations made by the staff in relation to the 150m buffer and that is as follows: 5. that the applicant be advised that when a development application is submitted, the setback from the building envelopes to the lip of the gorge shall be shown on all DA Plans and shall be at least 150 metres.
Objectors to the application advocated a 150m wide buffer zone in accordance with their Bargo-Nepean National Park Proposal Document (BNPP). That document calls for development that could be "close to, but not too close to, the Gorge. Between the buildings and the property boundary there could be a 50 to 150 metre wide area where existing vegetation is protected and where Shale Sandstone Transition Forest and/or other vegetation communities are reinstated. That area could have some narrow tracks that lead to at least five lookouts along the cliff tops."
Based on the evidence, it would appear that the original intent of the 150m buffer was to preserve the important vegetated corridor along the cliff tops and this has been addressed through the zoning of that land to E2 Environmental Conservation as that area is at least 150m wide according to the council's report on the planning proposal.
The council's condition called for a further 150m buffer from the E2 zone boundary within the R5 zoned land to be dedicated however, there is no ecological basis on which that line has been determined, other than the agreed position of the ecology experts that it is desirable for some form of buffer to be provided. Ms Stengl says that buffers in the form of increased vegetation area as long as managed appropriately do provide increased environmental outcomes and the intent of the 150m building line was to increase a buffer whereas Mr House says the existing E2 zone incorporates a buffer from the vegetation and an additional offset from the escarpment line has no ecological merit and ecologically is therefore not required.
Based on the original council resolution in relation to the planning proposal the only intention was to ensure that the dwelling house to be erected on each allotment was not erected any closer than 150m to the lip of the gorge. The zoning of land to E2 prohibits the erection of dwelling houses and therefore the intent of that resolution is met.
The VMP lodged with the application takes the buffer a step further and provides for a 150m setback between the R5 lands and the eastern escarpment zone which means no building may be built in that zone however Asset Protection Zones (APZ) would be acceptable. The VMP identifies all APZs to be within the R5 zoned land and these vary in width from 27m to 47m. The effect of the APZ is to increase the width of land between the top of Gorge and any future dwelling house.
The proposed amendments to the VMP provide for a 30m wide buffer from the E2 zone boundary which is to provide a transitional area between the E2 zone and the dwellings. That area could be used as the APZ, include canopy planting that is APZ compliant and also provide for effluent disposal provided appropriate setbacks from boundaries are provided and the contours and soil conditions are appropriate.
On the basis of this evidence, I am satisfied that the alternate condition proposed by the applicant and detailed at [27] is reasonable and would achieve the intent of the council's resolution, that is to provide the 150m wide corridor called for in the BNPP through making available for purchase at some time in the future that part of Lot 606 that is within 150m of the cliff top whilst achieving appropriate environmental outcomes.
Importantly, requiring the conditions that impose a restriction to user on the lots that include the E2 zoned land to maintain the area in an appropriate manner will ensure the existing vegetation is protected where Shale Sandstone Transition Forest and/or other vegetation communities are reinstated and the objectives of the E2 zone are achieved.
I consider that the ongoing maintenance of these areas is of particular importance and was not ensured through the original consent conditions. The wording of the instrument does, as suggested by Mr Seton, need to be easily understood by any future landowner. In addition, the changes suggested to the VMP should be incorporated into one document and detail the extent of works within the E2 zone, APZ and the 30m buffer area which can incorporate the APZ and onsite septic disposal areas.
A separate restriction to user should be imposed that ensures the dwelling houses are erected to the west of the 30m buffer zone in the case of those lots other than 210, 211 and 311-314 where the dwellings are to be located to the south of that buffer line.
With those additional requirements I am satisfied the objectives of the E2 zone will be met.

Roadworks

It is common ground that the provisions of s80A provide for the imposition of the condition that requires the roadworks along River Road.
The difference between the parties is whether the costs of that work not anticipated in the VPA should be borne by the applicant in addition to the $5million contributions that are payable under that agreement.
The council submits that now the number of allotments is determined, the extent of roadworks has been assessed that are required to ensure safe and adequate access to the site is provided, that work being accepted by the applicant, the conditions requiring that work should be imposed. Mr Seton acknowledges that, in assessing the application pursuant to the provisions of s79C(1)(a)(iiia) of the EP&AAct the Court must take into consideration any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, the provisions of any such agreement do not prevent the imposition of the conditions that require roadworks of a higher standard than that envisaged under the planning agreement. In accordance with the provisions of s79C(1)(b) he submits that the likely impacts of the development, generating in excess of 1000 vehicle movements per day, require the works detailed in the amended conditions, those works according to the council's Road Design Specifications.
The planning agreement between the applicant and council does exclude the application of each of Sections 94 and 94A of the EP&AAct to the Development and/or the Development Land (clause 3.1.3 of the agreement). Therefore, in order that I can be satisfied the conditions should be imposed, I must be satisfied that they are not works to which s94 applies. Because the works are not included in the council's S94 Contributions Plan the roadworks cannot be subject to a condition requiring the construction under s94.
The applicant accepts that the conditions may be imposed pursuant to s80A of the EP&AAct however argues that it would be inequitable and unconscionable to do so in view of the provisions of the planning agreement that it says were to address the total monetary contribution due to the council. For that reason the letter of offer was sent to the council seeking to amend the VPA to include an increased monetary contribution for the extent of roadworks proposed by the council.
No evidence was provided to the Court during the hearing as to the precise costings of that work other than the estimate attached to the letter of offer however the applicant estimates the shortfall to be in the vicinity of $1,404,200 and seeks to reduce the cash component of the VPA by that amount. The council did not have time to review these estimates during the hearing.
The effect of the offer would be to reduce the cash component payable under the VPA from $2,514,100 to $1,081,700. The applicant says that the range of facilities to be provided under the cash contribution component of the VPA could then be determined by the council.
The applicant also accepts that the quantum of works detailed in draft condition 7(2) should occur to provide for the upgrading of the access to the site.
As there is no dispute that the works detailed in the draft condition should be undertaken, the matter that I must assess is whether it is appropriate for the applicant to bear the cost of that work or, should I rely on the letter of offer and its progress before the council.
As detailed in Progress and Securities Building Pty Limited Burwood Council & Anor (No 2) [2008] NSWLEC 135, the Court has no power to require the council to enter into the modified planning agreement in accordance with the letter of offer. That is a matter for the council and outside the terms of s39(2) of the Land and Environment Court Act 1979 (LECAct).
For that reason and because of the agreed position that the works are required, the draft condition should be imposed and the matter left to the parties to negotiate terms and conditions. I note the council originally resolved to enter into the agreement in February 2013 and the VPA was endorsed on 12 August 2013. It anticipated around 110 lots and, subject to my findings on the consolidation/amalgamation issue, the number of lots will exceed that number even if I find for the council. I also note that there are no indexation provisions in the VPA and therefore the costs that were used as the basis for the contributions do not reflect 2016 values. Those are matters which should be considered by the parties.

Landforming/amalgamation/consolidation of lots

The experts agree that the proposed 125 lots without being consolidated however, subject to the minor amendments to the boundaries as described at [51], are capable of providing an area for onsite sewage disposal.
It is the council's position that the sites the subject of the consolidation/amalgamation conditions should be landformed to provide a suitable platform at subdivision stage rather than leave this to individual purchasers to carry out those earthworks at construction stage.
Having regard to the evidence and the planning controls I support the council's position. The sites the subject of the conditions were identified during the site view. They are steeply sloping and in proximity to watercourses or overland flow paths. For this reason it is appropriate to ensure that a thorough assessment of the extent of landforming is conducted that minimises the impacts of the development on receiving waters. The creation of appropriately sized and graded disposal areas at subdivision stage will ensure this is achieved and will meet the objectives of clause 7.3 of the LEP.
In addition, it will minimise the need to construct retaining walls, which, in accordance with the evidence of Mr Pitronaci, could be up to 2m high if left to the individual property owners. Such walls would not be consistent with the desired future character of the locality in accordance with the objectives of the R5 zone, which is to provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
Whilst I accept that the creation of an area of 1500sqm may not ultimately be required, the area not required can be used for recreational or other purposes and will ensure that there are no conflicts with adjacent properties and overland flowpaths. It is also consistent with the provisions of the Environment & Health Protection Guidelines On-site Sewage Management for Single Households (Guidelines) which state that "The subdivision stage is too late in the development process to consider on-site sewage management for the first time, as the land will usually already have been rezoned and development densities prescribed by the LEP. This can lead to a situation where inappropriate expectations are raised above minimum lot sizes that are not consistent with the environmental capability of the land and/or the operational requirements of the technology used." The document then lists detailed analysis of a number of factors that must be included at subdivision stage. These details were not provided and accordingly, I accept the council's position that the landforming must occur at subdivision stage. This is also consistent with the relevant provisions of the DCP as it will ensure that sufficient land with the correct physical and chemical characteristics is provided to allow for the wastewater to be treated and disposed of within the boundaries of the lot.
Consistent with the Guidelines, the process of approving individual devices can be straightforward when a development application is submitted for an individual dwelling on each allotment. This provides for orderly and economic use of the land.

Conclusion

It is apparent that the consent issued is problematic. It includes conditions that cannot be validly imposed requiring the gifting of land for which there is no power available to the council or the Court. In addition, there are no conditions that would ensure the ongoing conservation and management of the sensitive ecological areas, particularly those areas within the E2 zone.
Based on the expert evidence before the Court, it is appropriate to delete or modify a number of conditions to deliver better outcomes.
For these reasons, it is appropriate to modify the consent in accordance with that agreement.
It is not necessary for me to determine who should pay for the roadworks, that is a matter for the parties. The works are required for the development.
In relation to the remaining conditions in dispute, I have provided reasons as to why certain conditions are required or should be modified and why I do not support the amalgamation/consolidation of lots however do require landforming of the lots that were subject of the council's conditions that did require that to occur.
For these reasons, the parties are required to prepare modified conditions of consent that reflect my findings. Those conditions include but are not limited to:

Update VMP to detail works required prior to release of subdivision certificate and then the ongoing responsibilities for maintenance by the owners;
need to do all weed management in stage 1 rather than wait so that the 2 year period occurs before the final stage of release;
APZ extends beyond the 30m zone so needs to ensure that this is reflected in the VMP and details on how it is to be managed;
All of the APZ to be on the R5 zoned land and nothing in the E2;
Carryout the necessary earthworks for the 1500sqm pad at subdivision stage so that it is contoured and not needing retaining walls and addresses overland flow paths; ensure works do not conflict with Office of Water GTAs. No change of levels within the E2 zone, all works within the R5 land, condition to include these issues and also to accord with Exhibit Q;
Plans to be amended as per recommendations in Exhibit E Pitronaci report to reflect modified boundaries;
Condition addressing contamination and compliance with the provisions of State Environmental Planning Policy No 55 - Remediation of Land refined to include a requirement for a remediation action plan in addition to the process detailed in Exhibit n;
Imposition of the condition detailed at [27] in relation to the future acquisition of land for national/regional park purposes if required;
Roadworks in accordance with the council's draft amended condition 7(2) as detailed at [30] including the provision of the "wombat" crossing point/s;
Restriction as to User, nominating the council as the authority permitted to release or vary the restrictions, to be imposed that prevent the construction of any buildings in the 30m buffer from the E2 zone;
Modification of condition 22d) so that it only applies to the E2 zoned land;
22 k) is required to deal with the treatment of the E2 land and should explain the obligations of the owners in relation to the works required under the VMP in simple terms;
Dwellings located as per [77] with building envelopes identified on the subdivision plans

In addition, the VMP should be amended to reflect the agreed position of the parties and this decision and referenced in the conditions of consent.

Directions

In accordance with the above findings and conclusion I make the following Directions: 1. The applicant is to amend the VMP in accordance with the agreed position during the hearing and in accordance with my findings above and file and serve that plan within 14 days of the date of this judgment. 2. The applicant is to prepare amended plans of subdivision that reflect the amended boundaries and file and serve those plans within 14 days of the date of this judgment. 3. The parties are to file electronically in Word format agreed conditions of consent that reflect my decision in accordance with the Court's Direction in relation to format, Annexure A to detail the conditions modified and Annexure B to incorporate the consolidated, modified conditions of consent within 7 days of filing of the documents detailed at (1) and (2) above.
On receipt of these documents, final Orders will be made in Chambers.
Addendum made on 14 December 2016 In accordance with the terms of directions in paragraph 103 of my judgment of 11 November 2016, on 9 December 2016 the parties provided me with the agreed conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows:
The appeal is upheld.
Development Application 010.2014.00000588.001 for a 125 lots subdivision with associated works at Lots A and B DP 369710, Lots 1 & 2 DP 1210433 and Lots 85 and 86 DP 751270 Nos 165, 175, 185 and 195 River Road, Tahmoor is approved subject to the conditions in Annexure A.
The exhibits, other than exhibits A, G and 2, are returned.

Sue Morris Commissioner of the Court

Annexure A - Conditions of Consent (156 KB, pdf)

Amendments 15 December 2016 - Addendum - Final Orders 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: 15 December 2016

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Judgment (15 paragraphs)

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Cases Cited (1)