CB Richard Ellis (V) Pty Ltd trading ass CBRE Town Planning v Palerang Council - [2009] NSWLEC 1450 - NSWLEC 2009 case summary — Zoe

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CB Richard Ellis (V) Pty Ltd trading ass CBRE Town Planning v Palerang Council

[2009] NSWLEC 1450

Land and Environment Court (NSW)|2009-12-18

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2009-12-18

Source

Original judgment source is linked above.

Judgment (81 paragraphs)

[1]

The applicant is to prepare an instrument under section 88B of the Conveyancing Act 1919 restricting the erection of buildings to within building restriction precincts delineated on the plan of subdivision for approved allotments on the rural residential land, as amended in red by Council. Building Restriction Precincts shall not exceed 2000 square metres in area, and shall be located so as to have no impact on the high and medium conservation value vegetation on the subject site. A building restriction precinct shall also be provided for the existing rural allotment, encompassing all buildings on that Lot The instrument is to nominate Council as the sole party with power to vary the restriction and the restriction is to apply to all lots created in the subdivision, including those with existing buildings. The building restriction precincts are to be surveyed and pegged on the ground prior to the release of the linen plan. Reason: To ensure that the sites for future dwelling houses and other buildings are determined prior to registration of the new lots.. Size restriction are applied to decrease the environmental footprint of future development of the approved subdivision

[2]

The subdivision plans submitted to Council are to incorporate conservation areas for the moderate and high value woodland areas of the subject property, as identified in the vegetation survey and submitted with the application. These areas are to be protected from disturbance by suitable S-88B restrictions, that prevent the removal of native vegetation from these areas including dead timber for the purposes of firewood, except in connection with an approved fire hazard safety plan. Council is to be nominated as the beneficiary to this S-88 restriction to user, with sole power to vary, modify or extinguish the said restriction. Reason: To create the legally binding conditions for future landowners so as to protect

[53]

Engineering Fees (Certification of design documentation submitted by suitably qualified designers, and general advice on documentation requirements prior to issue of construction certificate). Public and Private Road 1 @ $400.00 + GST $ 440.00 (incl GST) GLSubdivEngineer Bridges, Major Culverts/Drainage 3% of Estimated Cost $ (incl GST) GLSubdivEngineer Entrances 4 @ $85.70 + GST $ 377.08 (incl GST) GLSubdivEngineer Construction Certificate Application Fee For subdivision: 1 st lot $125.00 plus $62.50 each for subsequent lots plus GST, plus Long Service Levy of 0.35% of the estimated cost of the work where the cost exceeds $25,000.00, collected on behalf of the Building and Construction Industry Long Service Payments Corporation, which includes a Long Service Levy Collection Fee of $19.80, inclusive of $1.80 GST. Submit an application form for Construction Certificate at the time of payment. CC Application Fee 1 lot @ $125.00 + 4 lots @ $62.50 + GST $ 412.50 (incl GST) CON.2009. Plus L/S fees if applicable $L/S fees (incl $1.80 GST) LSL (ID No.) Works Surveillance and Certification of Work as Constructed (Post Construction Certificate) 7 hours @ $85.70 per hour + GST $ 659.89 (incl GST) GLSubdivEngineer TOTAL $1,889.47 + $L/S Fees The above quote is based on Council's 2009/2010 Fee Schedules and is subject to increase if paid after 30 June 2010. Name: CBRE Consulting Development Approval No. Address: Level 1, 11 Lonsdale Street DEV.2008.0157 Braddon, ACT, 2612 ESTIMATED COST OF WORK (Ref. CC application form) $

[76]

Works for construction of bore must be completed within such period as specified by the Department. The Department must be notified if a supply of useable water is obtained and the bores shall then be suitably lined and capped to the standard required by the Department. Within two months after the works are completed the Department must be provided with an accurate plan of the location of the works and notified of the results of any pumping tests, water analysis and other details as are specified in the approval. The work, if required by the Department must be at least: * 200 metres from any boundary of the property * 400 metres from any irrigation bore on any adjoining property * 500 metres from the town water supply bore * 400 metres from any Department observation bore * 40 metres from the nearest bank or any river or creek Officers of the Department or other authorised persons must be allowed full and free access to the works for the purpose of inspection and testing. All works must be constructed and maintained to properly control the water extracted to prevent wastage or any reduction in quality of the sub-surface water. The Department may direct that any necessary repairs or alterations be undertaken to maintain the works in good working order. The inside diameter of any casing used to line the bore must not exceed 220mm. Any saline or polluted water located above a producing aquifer must be sealed by the use of cemented casing as specified by the Department. If the bore ceases to be productively used, the Department must be notified and the aquifer must be sealed by a method acceptable to the Department. Any water extracted by the works must not be discharged into any watercourse or groundwater if it would pollute that water. Any water extracted for domestic purposes may be used to water gardens for private use. The volume of groundwater extracted as authorised must not exceed a combined total capacity of 0.8 megalitres for proposed Lot 4 and 1.1 megalitres for proposed Lot 5 in any 12-month period commencing 1 July. The allocation will be reviewed if there is any change in the ownership of the land.

Parties

Applicant/Plaintiff:

CB Richard Ellis (V) Pty Ltd trading ass CBRE Town Planning

Respondent/Defendant:

Palerang Council

Cases Cited (2)

CITATION : CB Richard Ellis (V) Pty Ltd trading ass CBRE Town Planning v Palerang Council [2009] NSWLEC 1450

The proposed access regime provides a desirable environmental and planning outcome s . Such access involves minimal environmental impact on high value and "critical habitat value" bushland north of Donnelly Creek, and provides access economically, consistent with the requirements of clauses 16(1)(d) and (e), and clause 18(1)(c) of the Yarrowlumla Local Environmental Plan 2002 [Bundle, pages 179-180; Report of Mark Grayson, pages 3-9; Report of Bernie Cusack, pages 11-12]; The proposed access regime provides coinciding practical and legal access, consistent with objective (i) of clause 1.6 of the Yarrowlumla DCP for Rural Zones [Bundle, page 245]. In this regard the Council has admitted in the proceedings that Hideaway Place is a public road; The likely amount of traffic to be served from two (2) rural residential lots will not create any unacceptable amenity impacts (visual, privacy, quiet enjoyment) on the community association lots, particularly having regard to the denser subdivision pattern of that scheme; The bitumen sealing of the access road will mean there will be no dust impacts from its use; The design of the access road, in accordance with Council's standard requirements [Bundle, pages 269-271], will cater for stormwater drainage and not create water quality impacts. Any temporary impacts from construction activities can be adequately and appropriately managed by standard construction techniques (eg. water spray dust suppression). The existing registered right of carriageway carries with it the ancillary property right for the owner of the dominant tenement to carry out works on the right of carriageway including construction of road surfaces: Bland v. Levi (2000) 9 BPR 17,517; [2000] NSWSC 161. The matter of owner's consent of the Community Association to a future development application to construct the access road is not a matter requiring determination in these proceedings. 16 In my determination of the modification application I have carefully considered the concerns of the objectors and the expert evidence to the Court including the conditions as discussed.