Conditions
101During the hearing a number of conditions of consent were discussed and some changes agreed by the parties; others are to be determined by the Court.
102The parties agreed that conditions 6, 8, 12, 15, 18 and 30, in so far as they relate to trees, were to be refined by the parties' arborists. Condition 6 concerning tree removal is agreed however the 'tree removal plan' is to be incorporated into a broader 'Tree Management Plan' (TMP). Conditions 8 and 12 concerning trenching - the respondent's version of 10 m is preferred however this may be adequately addressed by detailed specifications in the TMP. It was agreed that conditions 15a and 15 could be incorporated into a condition covering the TMP. With respect to condition 30, a tree protection plan is to be included in the tree management plan. Therefore, with respect to the trees, it was agreed that the parties' arborists were to prepare a TMP for the site that includes trees to be retained, a tree removal plan, and a tree protection plan. The plan must also include a tree removal and management plan for trees on adjoining properties identified as being at risk. The wording in the conditions is to be adjusted to reflect the incorporation of a TMP. The approval of the TMP by council is to be a deferred commencement condition.
103Since the completion of the hearing, the parties' arborists have prepared joint and individual versions of a condition requiring the applicant to submit a Tree Management Plan (TMP) to council for its approval prior to the operation of development consent. In reviewing the various versions of the new condition I find that they lack the detail given in existing conditions 6, 15a and 15. Whilst there may be an assumption that the detail in the original conditions would be included in a TMP, I am not convinced there is certainty of this happening unless the original conditions (as revised for consistency) are included in the final conditions of consent.
104The production of an overall TMP was envisaged to be a comprehensive document to include tree removal operations (variously called the 'tree removal plan' in condition 6 and 'tree removal management plan' in conditions 15a and 15), a tree protection plan for all stages of the development, and an updated survey plan. Given the lack of detail in the new condition I propose that conditions 6, 15a and 15 be reinstated as originally drafted (but revised by this judgment) and the details and specific requirements in those conditions be expanded in the TMP. As the council is the normal consent authority for works on trees on private property, the TMP is to be approved by council rather than any other Principal Private Certifying Authority. Conditions 15a and 15 are to be amended accordingly. The wording in those conditions is also to refer to the TMP.
105With respect to the new condition requiring a TMP I offer the following alternative, which addresses the requirements listed by the arborists but summarises them. It also incorporates the findings in this judgment at [86].
1A: The consent is not to operate until the applicant submits and the Council approves a Tree Management Plan prepared by a suitably qualified arborist. The Tree Management Plan is to include:
(a)an updated survey showing the location of all trees on the site and any trees on adjoining properties where trees are within 10m of the site boundaries. The survey is to identify all trees for removal (including those on adjoining properties); trees to be retained on the site; and trees on adjoining properties (within 10 m of the boundary) that are to be retained but are deemed to be potentially at risk. Exhibit H is to be amended to show these details and to include the removal of the Pinus radiata in the access road from Cross Street and the Pinus radiata in the access road from Cleopatra Street;
(b)a tree inspection and removal plan for the site and the trees on the properties identified in Conditions 6, 15a and 15 incorporating the details stated in those conditions.
(c)a detailed tree protection plan for all trees to be retained including tree protection measures required before and during tree removal operations and site works associated with the subdivision stage . The tree protection plan is to be prepared in accordance with Australian Standard AS 4970 Protection of trees on development sites. The tree protection plan is to specify an arborist to supervise trenching or under-boring for water, sewer, electricity and telephone connections/supply and stormwater where appropriate in the vicinity of trees to be retained on the site and on adjoining properties.
106The differences between the parties' arborists concerning the follow up inspections of the trees on adjoining properties discussed in [47] are raised in their versions of the new condition. Clauses 6, 15a and 15 state that certain trees on nominated properties are to be inspected at 6 and 12 months after the tree removal operations. This reflects the opinion of Ms Mackenzie. Mr Ford did not consider post-removal inspections to be necessary. I consider that a reasonable compromise to be: one inspection of trees on adjoining properties, nominated for removal or potentially at risk, prior to removal; and one inspection of trees retained but identified as potentially at risk in the September following the removal of the trees. If the tree removal occurs during August/September of any year, the following inspection should be between 6 and 12 months after removal. Conditions 6, 15a and 15 are to be amended accordingly.
107The applicant seeks deletion of Condition 11, which concerns the construction of the battleaxe driveways and the installation of service conduits for Lots 7, 9 and 10. The basis for this condition is cl D8.11.12 - Location of Access Driveways in Part 8 - Subdivision - of the Blue Mountains Better Living DCP (BMDCP). This states:
D.8.11.12 All lots should identify possible driveway locations. If there is only one possible or likely location then the driveway shall be constructed as part of the subdivision works.
108The plan of the proposed subdivision and the lot layout shows that Lots 7, 9 and 10 are accessed by 4.5m wide access handles off access road 1. It is therefore clear that there is only one possible or likely location of the driveways to these lots. Therefore the condition as proposed by the council should remain. However, given the location of several trees in the vicinity of the driveways to Lots 9 and 10, identified by the arborists as trees that could be retained, the design and construction of the driveways will require input from the arborists. The tree management plan must address tree protection measures for the trees most likely to be impacted by the construction of the driveways and the installation of the services.
109Condition 14 concerns perimeter fencing. Whilst the applicant at one stage agreed to construct a 1.8m timber fence around the entire site, that has since been withdrawn. Council presses the condition. The applicant contends that there are no controls in the BMLEP or BMDCP that require the construction of a perimeter fence at the stage of subdivision and that this is a matter for individual lot owners under the Dividing Fences Act 1991. I am satisfied that this condition should be deleted for the reasons put forward by the applicant and any plans revised to remove reference to the fence.
110Condition 18 requires a landscaping plan detailing the proposed street tree planting within the new roads. It should also include any additional landscaping treatment proposed along the new roads in order to ameliorate the visual impact between those roads and the adjoining properties. It was agreed that the parts of the condition relating to replacement plantings and landscaping of building setbacks of some lots be deleted.
111Condition 51 seeks to impose a covenant under s 88/E of the Conveyancing Act 1919 with respect to on-site stormwater detention. Part (b) of the condition states:
b. The registered Proprietor shall indemnify the Council and any adjoining landholders against damage to their land arising from the failure of any component of the OSD or failure to clean, maintain and repair the OSD.
112The applicant accepts the remainder of the condition but rejects part (b). As the council was unable to provide any compelling argument as to why this should be imposed, I see no reason why it should not be deleted. In this I find with the applicant.
113Conditions 52, 53 and 54 also refer to restrictions on use of the land pursuant to s 88B/E of the Conveyancing Act 1919 . They propose restrictions on building setbacks and 'no development areas' which include groups of trees to be protected; a positive covenant on the type of landscaping on each lot; and a single storey height restriction on Lots 1,2, 6 and 7. The council contends that some or all of the restrictions should be imposed on the future lots in order to ensure future local amenity (including that provided by established trees) and to minimise the impacts of future development on the heritage value of the adjoining heritage items. Mr O'Gorman-Hughes contends that the issues underlying the imposition of the restrictions are matters that should be considered when individual development applications are lodged and are not appropriate at the sub-division stage. He contends that such restrictions would restrict flexibility in the determination of future development applications.
114Both advocates considered the planning principle in Parrott v Kiama [2004] NSWLEC 77 regarding when a residential subdivision application should impose constraints on future development. Roseth SC at [17] states;
17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.
115With respect to these three tests, Mr O'Gorman-Hughes considers the first to be irrelevant as the lots are larger than required; secondly, the site is not especially environmentally sensitive; and thirdly, he considers there are no significant likely impacts on neighbouring properties that are not incapable of being mitigated (because of the large lot size) and considered at the individual DA stage. Mr Seton considers the imposition of constraints is reasonable to ensure that prospective residents are aware of the importance council places on the protection of trees and the amenity they provide. Similarly, he contends that height limits on future dwellings will meet council's heritage advisor's concerns regarding minimising any adverse impacts of any development on the visual setting of the two adjoining heritage-listed properties.
116In regards to proposed conditions 52, 53 and 54 I consider these issues are more appropriately dealt with at the stage at which development applications are lodged for individual lots. The indicative locations of the building foot prints show reasonable set backs from adjoining properties and appear to be sufficiently generous to enable considerable refinement for the purpose of ensuring adequate tree retention or space for landscaping at the DA stage for the individual lots. Similarly with the height and size of the future dwellings, these will be assessed on their merits and in accordance with the planning controls, which include consideration of tree retention, landscaping and heritage. Therefore, I determine that these conditions be deleted.