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Land and Environment Court of New South Wales |
Record of hearing
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Judge Pearlman J
Number 10167 of 1994
10960 of 1995
Parties Applicant Erolmore Park Pty Limited
Respondent Maitland City Council
Key issues Development application - industrial subdivision and road -planning history - effect of SEPP 46 - impact on endangered fauna - effect of SEPP 44 - visual impact - amenity of adjoining lands - sewerage and stormwater disposal - traffic
Statutes State Environmental Planning Policy No 44
State Environmental Planning Policy No 46
Hearing dates 4, 7, 8, 11, 12, 13 December 1995
14 February 1996
Judgment Reserved
Date of judgment 20 February 1996
Appearances Applicant Mr S B Austin QC with
Mr P R Clay, Barrister
Respondent Mr J F Kildea, Barrister
Solicitors Applicant Paul Hines
Respondent Thompson Norrie
Number of pages 30
Summary of orders
Appeals upheld.
Development consent granted subject to conditions.
Contents Page No
Introduction 1
The development site and its location 1
The issues 3
The planning context 4
The current zoning and relevant planning instruments 4
The planning history and future zoning 5
The effect of SEPP 46 9
Endangered fauna 11
Visual impact and landscaping 19
Amenity of adjoining lands 22
Sewerage and stormwater disposal 22
Traffic 21
Contaminated land along the route of Glenwood Drive 23
Conclusion 24
Conditions of consent 25
Orders 29
Annexure "A"
Annexure "B"
Annexure "C" conditions of subdivision consent 1-33
Annexure "D" conditions of link road consent 1-21
IN THE LAND AND 10167 of 1994
ENVIRONMENT COURT 10960 of 1995
OF NEW SOUTH WALES Pearlman J
20 February 1996
Applicant
Respondent
Introduction
These proceedings involve two class 1 appeals brought by the applicant, Erolmore Park Pty Ltd against the deemed refusal by Maitland City Council ("the council") of development applications 93344 and 95317. By leave, they were heard together.
Development application 93344 ("the subdivision application") sought approval for a 78 lot industrial subdivision at Thornton, near Maitland. Development application 95317 ("the road application") sought approval for construction of a road linking the industrial subdivision to Thornton Road.
For the reasons set out below, I have concluded that the appeals should be upheld, and that development consent should be granted, subject to certain conditions.
The development site and its location
The area which is proposed to be subdivided into 78 lots ("the development site") is part of a larger site ("the overall site"), which in turn is part of the Thornton industrial area ("the industrial area"). To set the development site in its locational context, I describe each of these three areas:
The industrial area is depicted on the attached map "A". It is situated approximately 10km south east of Maitland. It is bounded to the north by the Great Northern Railroad, to the east by Thornton Road, and to the south by the New England Highway. As map A shows, a portion of the industrial area has been excised and zoned 2(a) for residential use;
The overall site is also depicted on map A. It is lot 28 in DP 849873, being part of the industrial area and is the residue remaining after the residential portion had been excised. It is roughly rectangular in shape;
The development site is depicted on the attached map B. It comprises approximately 34 ha. Also depicted on map B is the access link road, running from the development site, under the coal haulage railway, and across to Thornton Road.
I have had the benefit of an inspection of each of the three areas, and the neighbouring areas of Metford and Thornton.
The applicant proposes to construct roads and stormwater drainage on the development site, and to landscape both it and the overall site according to a landscape concept plan. The applicant also intends to construct two artificial wetlands for the purpose of improving the quality of stormwater discharge.
The subdivision facilities are to be constructed and uncleared lots released for sale in stages. There is no definite staging plan for the subdivision, and the applicant has indicated that the staging will be dependent upon demand for the land.
The access link road, referred to as Glenwood Drive, will be constructed during the first stage of development. It involves the construction of the road (using part of an old haul road in existence), a tunnel under the coal haulage railway, and an intersection with Thornton Road.
As will become apparent, most of the issues in this case involve a consideration of the whole of the industrial area, which, as I have said, includes the overall site, but also includes the route of Glenwood Drive. There were, therefore, no substantial issues which affected the road application separately from the subdivision application, except a concern as to the effect of a contaminated site, a matter which I deal with separately.
The Issues
The issues which arise in this case are as follows:
The planning context, and, in particular, the planning history of the industrial area, its future zoning and the effect of State Environmental Planning Policy No 46 ("SEPP 46");
The impact of the proposed development on the environment of endangered fauna;
The visual impact of the proposed development and proposals for ameliorative landscaping;
The impact on the amenity of adjoining lands;
Traffic generation and impact, and in particular, access to the development site;
The adequacy and availability of stormwater and sewage disposal;
The possibility of the disturbance to contaminated land in the construction of Glenwood Drive (the access link to Thornton Road).
I deal with each of these issues in turn.
The Planning Context
In the planning context, it is necessary to consider the relevant instruments and controls not only as they relate to the development site but as they relate to the whole of the industrial area and the whole of the overall site within it. Three issues arise - first, the current zoning and relevant planning instruments; secondly, the planning history of the industrial area and its future zoning; and thirdly, the effect of SEPP 46.
The current zoning and relevant planning instruments
Map A shows that most of the industrial area and about half of the overall site, including the development site within it, is zoned 4(a) General Industrial under the Maitland Local Environmental Plan 1993 ("the LEP"). In this zone, development for industrial purposes is permissible with council consent. Furthermore, cl 8 of the LEP provides that land to which the LEP applies shall not be subdivided without council consent.
The City of Maitland Development Control Plan No 1: Industrial Development Code applies to all industrial zoned land in Maitland. It is, however, not directly relevant to a subdivision application, relating rather to the carrying out of development for industrial purposes.
The Hunter Regional Environmental Plan 1989 establishes objectives, policies and principles for development in the Hunter region. So far as concerns industrial development, its main objective is to ensure that sufficient zoned and serviced industrial land is provided in locations appropriate to the needs of industry, whilst ensuring protection of the environment.
One relevant planning constraint is specified in the City of Maitland Development Control Plan No 4: Conservation of Clay Resources ("DCP 4"). This plan establishes a clay conservation area in order to protect a valuable clay resource at Thornton. The conservation area extends into the industrial area. No part of the overall site lies within the conservation area, but cl 6 of DCP 4 provides that land use other than clay extraction will only be permitted where it can be demonstrated to the council's satisfaction that the extraction of clay on, or near, the conservation area will not be impeded.
In summary, subject to the planning matters specified below and to the effect of the constraint imposed by DCP 4, all of which I discuss below, there is no planning prohibition on the development which is proposed by the subdivision application and the road application.
The planning history and future zoning
The overall site has been zoned principally for industrial purposes since 1974, when the Maitland Interim Development Order No 6 was amended to zone the overall site as l(c) Non-Urban "C" Light Industrial and Proposed Open Space (Highway frontage). As noted by Mr G A Shiels, an experienced town planner who gave evidence for the applicant, that zone, in slightly different forms, has been consistently applied to the overall site since then through succeeding environmental planning instruments.
In recent times, however, the council has been reviewing the appropriateness of the current zoning of the industrial area. Events to date may be summarised as follows:
The subdivision application was lodged with the council on 16 September 1993.
Between October and December 1993, a draft development control plan was prepared relating to the industrial area and put on display. A number of submissions were received, the majority of which objected to industrial development and the loss of natural bushland. The council resolved on 8 March 1994 to review the zonings of the industrial area.
The class 1 application appealing against the council's deemed refusal of the subdivision application was lodged with the Court by the applicant on 18 March 1994;
A local environment study relating to the industrial area ("the LES") was prepared and placed on exhibition on 15 July 1995. The LES concluded that a preferred land use strategy should be adopted with the following features:
- most of the land to the west of the coal haulage railway should be zoned 7(b) Environmental Protection, except for an area in the centre which should be zoned 1(c) Rural Residential;
- most of the overall site should be in the 7(b) zone, except for the existing 2(a) residential area and some land near the eastern boundary, which would in a 1(c) Rural Residential zone;
- the zoning to the east of the coal haulage railway should be 4(b) Light Industrial, except for an area along the New England Highway and beside the railway which should be in the 7(b) zone.
The council considered the LES and the public responses at its meeting on 24 October 1995. At that meeting, Ms S L Pope, a strategic planner with the council, presented a report in which she supported the preferred land use strategy given by the LES. She suggested that specific environmental controls could be implemented by means of a development control plan. Ms Pope gave evidence stating that she still adhered to her conclusion in her report.
The council did not adopt the recommendation in the LES which was supported by Ms Pope. Instead, it resolved to prepare and exhibit a draft local environmental plan ("the draft LEP") which contains the following features:
- A new zone, 7(c) Environmental Protection General, is created;
- The zone boundaries recommended in the LES for the land east of the coal haulage railway are adopted, but the area recommended to be zoned 7(b) is zoned 7(c);
- The existing 6(a) zone around Four Mile Creek is retained, but the rest of the land west of the coal haulage railway, including the development site but excluding the existing 2(a) Residential area, is zoned 7(c).
Industrial use would not be permissible in the 7(c) zone.
The draft LEP has been prepared and forwarded to the Department of Planning and Urban Affairs. At the time of the hearing, a certificate under s 65 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") certifying that it may be publicly exhibited had not issued.
Mr Kildea, for the council, submitted that I should take these matters into account as circumstances of the case. He contended that these matters were part of a considered planning process which should be allowed to reach a conclusion, and that to allow the appeals would effectively constrain the operation of the planning process. His submissions were supported by Mr D Brady, an experienced town planning consultant with Connell Wagner, who examined the subdivision application for the council and furnished a report concluding that development consent should be refused. Mr Kildea also submitted that the subdivision of the development site for industrial purposes would effectively entrench a form of development that was antipathetic to its most appropriate use. He pointed out that neither the option recommended in the LES and by Ms Pope nor the option favoured by the council would permit industrial development on the development site.
Mr Austin QC, for the applicant, submitted that the future planning for the industrial area was still in a state of uncertainty. He pointed out the following factors:
The development permitted in the proposed 7(c) zone in the draft LEP includes agriculture, tourist accommodation, educational establishments and recreational facilities. Many of these developments may have a greater effect on the development site than the proposed subdivision. Ms Pope indicated in evidence that it was the intention of the council only to permit small-scale development with a minimal impact on the development site, but this is not reflected in the draft LEP as it stands.
There is no certainty that a s 65 certificate will issue for the draft LEP. In particular, the Department of Mineral Resources has written to the council indicating that it objects to the preferred land use strategy set out in the LES as it would preclude clay extraction and sterilise all the clay resources in the clay conservation area west of the coal haulage railway. As well, the light industrial zoning proposed for east of the coal haulage railway may prevent the extraction of clay in that part of the industrial area.
The proposed subdivision and associated industrial development is not completely contrary to the alternatives proposed in the LES and by the council. Both these options contemplate some forms of development. In particular, the LES contemplates rural residential development in an area of higher visibility than the development site.
I take all these matters into account as circumstances of the case under s 90(1)(q) of the EP&A Act, but I do not think that they should require the Court to refuse to grant development consent to the subdivision application or the road application. The draft LEP remains a draft, the future use of the development site remains uncertain and, as against those matters, the current zoning of the overall site, which has existed for over 20 years, permits industrial use upon it.
I refer at this point to the evidence adduced by Mr I R G Parsons, an experienced land economist, on the supply and demand for industrial land in the Lower Hunter region. Mr Parsons analysed that demand for the purpose of updating the information contained in the Lower Hunter Employment Lands Report ("LHELR") issued in 1993 by the Department of Planning. Mr Parsons concluded that there was a total of 510 ha of vacant industrial land now available in the Lower Hunter demand area, compared with the LHELR finding that there were some 2632 ha available. His recommendation was that the industrial area should not be rezoned for other than industrial use, and, by implication, he was recommending that the subdivision application should not be refused.
Mr Brady criticised Mr Parsons' methodology and conclusions. However, even if Mr Brady's criticisms were to be accepted, the only result is that the estimate of available industrial land is perhaps not so bleak as Mr Parsons suggests, but not so ample as the LHELR suggests.
The point does not matter, because I find this evidence unhelpful in determining the issues in this case. The development site comprises only 34 ha of industrially zoned land, or 18% of the whole of the industrial area. It does not seem to me to be of overwhelming importance in relation to the availability of industrial land as an economic resource for the Maitland area, and its availability cannot be determinative in deciding the issues in this case.
The effect of SEPP 46
SEPP 46 relates to the clearing of native vegetation. [It has been amended since the date of the hearing, but I refer to it in its original form]. Clause 6 provides as follows:
"Consent required for clearing of native vegetation
6. (1) Clearing of native vegetation must not be carried out on land to which this policy applies except with the development consent of the Director-General of Land and Water Conservation granted with the concurrence of the Director-General of National Parks and Wildlife.
(2) Such a consent may be granted only if the consent authority imposes a condition providing for the consent to lapse 12 months after the date from which it operates."
Clause 7 provides that a consent under clause 6 may only be granted if the consent authority is satisfied of certain matters.
Mr Kildea submitted that the clearing of native vegetation for the purposes of the proposed development would require a development consent under cl 6 of SEPP 46. He contended that the applicant would not be able to satisfy the consent authority of several of the matters in cl 7 and that, therefore, since development consent under SEPP 46 was unlikely to be granted, it would be futile now to grant consent to the subdivision application and the road application.
Schedule 3 of SEPP 46 provides, however, for certain exemptions to the requirement for obtaining development consent for the clearing of native vegetation. One of those exemptions relates to "minimal clearing" and exempts "the clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership".
The applicant indicated that it proposed to sell the lots on the subdivision uncleared; therefore, the only clearing which it would have to do would relate to the construction of roads and utility services. In this way it would be able to carry out any necessary clearing without the need for a development consent, but if its plans altered in such a way that a consent under SEPP 46 became necessary, it would apply for that consent.
The applicant indicated that it would be prepared to agree to the imposition of a condition of consent in the following terms:
"The applicant proposes to carry out the development in stages and shall not in any 12 month period clear more than two hectares of native vegetation for the construction of road drainage and utility services provided however that in the event that the staging needs to be modified such that the applicant requires to clear more than two hectares of native vegetation in any 12 month period, it shall notify council and make the appropriate applications for consent to the Director-General of the Department of Land and Water Conservation, and receive approval prior to works commencing."
Mr Kildea conceded that this defeated his original argument. However, he submitted that the applicant's proposed condition was an artifice to avoid having to comply with the requirements of SEPP 46. What the subdivision application really contemplates is the clearing of 34 ha of native vegetation. SEPP 46 was designed to prevent this from occurring without the relevant consent, and he submitted that I should take this into account in considering the application.
I do not, however, consider that the application of SEPP 46 to the proposed development should lead to a refusal of development consent. The applicant is bound to comply with the terms of SEPP 46 if it contemplates any clearing which would be caught by the provisions of SEPP 46. If the clearing that it undertakes falls within the exemptions in SEPP 46, so be it; if it does not, then the applicant will need to obtain development consent, and whether or not the consent authority will grant such development consent is a matter for the consent authority. It is often the case that as well as obtaining development consent, a developer must obtain licences and consents from other authorities before the development may proceed - for example, building approval under the Local Government Act 1993, licences under the Pollution Control Act 1970 or licences to take and kill endangered fauna under the National Parks and Wildlife Act 1974. There is no warrant, in principle or in the provisions of SEPP 46, which requires the Court to refuse to grant development consent to the applicant in the absence of development consent under SEPP 46.
Endangered Fauna
The main issue in this case is the impact of the proposed development upon the environment of endangered fauna. The council's submission was that there will be a significant impact upon the environment of some species of endangered fauna, and development consent should consequently be refused.
Several expert reports on the subject were tendered in evidence. They were a fauna impact statement ("FIS") prepared by ERM Resource Planning and lodged with the council in March 1995 (which had been preceded by an assessment by the same firm in September 1993), an analysis of ecological constraints prepared for the applicant by Mr G B Winning of SWC Consultancy, a study prepared for the council by Mr S R Lenehan of Connell Wagner, bat assessments by Dr H Parnaby (which was an annexure to the FIS), by Ecotone Ecological Consultants and by Mr G A Hoye, and assessments of koala habitat by Mr C R Williams and Mr B Wilson of Ecotone Ecological Consultants and by Mr D N J Lambert of the National Parks and Wildlife Service.
Oral evidence was given by Mr Winning, Mr Hoye, Mr Lenehan, Mr Lambert, and Mr Williams.
The following fauna were detected in the industrial area, all of which are listed in sch 12 of the National Parks and Wildlife Act 1974 as rare and vulnerable species:
the painted honeyeater;
the greater broad-nosed bat;
the squirrel glider; and
the koala.
Other rare and vulnerable species of bat were considered by Ecotone and by Mr Hoye as potentially occurring on the development site. It is unlikely, however, that the proposed development would have a significant impact on any of these species. Some of them are cave roosting species, whilst others, such as the common bent-wing bat and the little bent-wing bat, are likely to use the development site as entirely for foraging for flying insects, so that the development site is unlikely to contain any unique habitat for them. Other species have a relatively low probability of being upon the development site.
I also conclude that the painted honeyeater is unlikely to be adversely affected by the proposed development. It had been recorded in the industrial area by members of the Hunter Bird Observers Club, but has not been sighted in more recent studies. The experts agreed that the development site does not provide essential habitat for this species.
I put aside, to return to it later, consideration of the impact of the proposed development on the habitat of the koala, because that impact must be assessed having regard to the provisions of State Environmental Planning Policy No 44 ("SEPP 44").
All the experts agreed that the proposed development would have an adverse impact upon the environment of the greater broad-nosed bat and the squirrel glider, but Mr Winning's conclusion, which I accept, is that the proposed development would not lead to the extinction of either of the species.
The greater broad-nosed bat usually roosts in tree hollows, but the vegetation on the industrial area is mainly regrowth and younger trees and few of the trees contain suitable hollows. The development site, in Mr Winning's opinion, provides therefore only limited roosting and nesting habitat for this species. The greater broad-nosed bat does, however, forage within the industrial area and clearing of the development site would impact upon its foraging habitat. But the greater broad-nosed bat is relatively large in size, and is presumed to forage over a comparatively large range, so that foraging habitat would remain for the species outside the development site, both in the remainder of the industrial area and to the south of the New England Highway.
The squirrel glider is a more sedentary creature, but in Mr Winning's opinion, the industrial area is poor habitat for this species because there are few trees with hollows suitable for its roosting and breeding, and there are only three recorded glider sightings in the industrial area. Mr Winning considered that the squirrel glider population on the development site would be small, and that population would not, in his opinion, be of regional significance.
Another factor which each of the experts took into account was the disturbed nature of the industrial site. It is hardly pristine. It is affected by weed invasion, fire and storm damage, and proximity to residential areas with consequential predator impact from dogs, cats and foxes. It is in addition traversed by rough bush tracks, some of which are only navigable by four-wheel drive vehicles.
My conclusion is that the impact of the proposed development on the environment of the greater broad-nosed bat and the squirrel glider is not significant, and that development consent should not be refused on this account.
In coming to this conclusion, I have taken into account that the applicant has put forward two ameliorative proposals.
First, approximately 92 ha of the industrial area located west of the railway is proposed as a fauna reserve. The FIS recommended that there should be a fauna management plan to assess the carrying capacity of the fauna reserve, and it also made certain recommendations about the design of the fauna reserve. The area proposed for the fauna reserve is outside the development site, except for part which would be crossed by Glenwood Drive (the access link to Thornton Road). Moreover, that area is not in the ownership of the applicant.
In these circumstances, the applicant proposed a condition of consent in the following terms:
"Prior to the issue of the first linen plan the Applicant will lodge with the council:
(a) evidence that the owners of lots 231 and 232 in DP 567290 and lot 1 in DP 188036 will agree to a restriction as to user to be registered pursuant to section 88B of the Conveyancing Act 1919 to ensure that no development will occur on the land shown "Fauna Reserve" on figure 4.1 of the ERM Resource Planning Fauna Impact Statement of February 1995 ("the FIS") (excluding the railway corridor and the Link Road (Glenwood Drive)) which is inconsistent with environmental protection, and
(b) a Plan of Management for the area of proposed environmental protection which is generally consistent with the objectives for the land set out in chapter 6 of the FIS."
Mr Lenehan was particularly concerned about the cumulative impact upon the habitat of endangered species if the whole of the industrial area was to be developed, and he noted that the provision of a fauna reserve was not "guaranteed". Mr Winning also referred to the impact being minimised by retention of bushland. Having regard to these opinions, a condition in the terms I have set out would be desirable to impose.
The second ameliorative proposal was to retain 22 potential roost trees on the development site. Mr Winning was of the opinion that this proposal would be of short to medium term benefit only, but, again, it seems to me desirable that a condition to this effect be imposed.
I now turn to the impact of the proposed development on the environment of the koala.
Shortly before the hearing commenced, Mr Lambert inspected the industrial area and discovered approximately 20 scats under a grey gum tree. The tree bore scratch marks consistent with having been made by the claws of a koala, although Mr Lambert conceded that the marks could have been made by another animal such as a goanna. He removed three of the scats from the development site and examined them in his office. He decided that they were koala scats and were approximately 12 months old. Mr Lambert conceded that the presence of the scats did not necessarily mean that the development site was inhabited by koalas and may merely mean that a koala had moved through the area.
The applicant requested access to the scats. In the course of his analysis, Mr Lambert had destroyed two of the three scats which he had collected. The third scat was packed in protective packaging and was dispatched by express post to Ecotone Ecological Consultants, who had been engaged by the applicant. However, by the conclusion of the hearing the scat had still not arrived at Ecotone's offices.
After the hearing had finished, but before delivery of this judgment, the parties sought and were granted leave to adduce further evidence about the presence of koalas in the industrial area. The third scat had turned up, and Mr Williams examined it. According to his affidavit evidence, he did not think it was a koala scat, nor did he analyse it under a microscope. He sent it to Ms Barbara Triggs, a specialist in the identification of mammals by indirect methods. Her report was annexed to Mr Williams' affidavit. She identified the scat as that of the common brushtail possum, principally (but not entirely) from the presence in it of ingested possum grooming hairs. The council tendered a short report in reply by Mr Lambert. He confirmed his earlier evidence that the shape and size of the scats and their leaf content had led him to consider that they were koala scats. He did not look for hairs in the scats which he examined. However, he acknowledged that Ms Triggs is an "authority on scats" and he did not doubt that the scat which she examined "is as she has said".
SEPP 44 applies to the development site and governs the assessment of impact upon koalas. Clauses 7 and 8 of SEPP 44 occur in pt 2, and provide as follows:
"Step 1 - Is the land potential koala habitat?
7 (1) Before a Council may grant consent to an application for consent to carry out development on land to which this Part applies, it must satisfy itself whether or not the land is a potential koala habitat.
(2) A council may satisfy itself as to whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification.
(3) If the council is satisfied:
(a) that the land is not a potential koala habitat, it is not prevented, because of this Policy, from granting consent to the development application; or
(b) that the land is a potential koala habitat, it must comply with clause 8.
Step 2 - Is the land core koala habitat?
8 (1) Before a council may grant consent to an application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself whether or not the land is a core koala habitat.
(2) A council may satisfy itself as to whether or not the land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management.
(3) If the council is satisfied:
(a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application; or
(b) that the land is a core koala habitat, it must comply with clause 9."
Clause 4 provides the following definitions for the purposes of SEPP 44:
""core koala habitat" means an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population;
...
"potential koala habitat" means areas of native vegetation where the trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component."
Mr Williams and Mr Wilson carried out a koala habitat assessment of the industrial area for the purpose of SEPP 44. Their conclusion was that the development site "has, overall, less than 15% food trees". They deduced this by a "visual assessment" over the development site, on the basis that the distribution of koala feed tree species varied greatly across the development site, "with some areas almost devoid of such trees". However, their actual sampling seems to belie this conclusion. They set out one quadrat in the development site and found that 23% of the trees were grey gums, one of the listed trees in sch 2. Of the other three quadrats which they set out, all of which were in the industrial area but two of which were outside the development site, two showed that koala feed trees comprised more than 15% of the tree population.
This koala habitat assessment was tendered very late in the hearing (it being carried out urgently because of Mr Lambert's scat discovery). As a result, neither Mr Williams nor Mr Wilson were cross-examined in relation to it, nor did the council have an opportunity to tender a koala habitat assessment from its own consultants. In these circumstances, it is proper that I treat this koala habitat assessment with some care, and when reviewing the conclusion of Mr Williams and Mr Wilson I should give little weight to that conclusion when it does not appear to be supported by their actual findings.
Mr Kildea submitted that I could not be satisfied from this evidence whether or not the development site is potential koala habitat, as required by cl 7(1) of SEPP 44. Furthermore, he said, I could not be satisfied that either of them possessed the necessary qualification of tree identification as cl 7 requires. In this respect, however, a curriculum vitae of Mr Williams was tendered, which discloses involvement for many years in koala assessment, including experience in koala habitat tree identification since early 1995.
Having regard to the definition of "potential koala habitat" in SEPP 44, and the findings of Mr Williams and Mr Wilson in their SEPP 44 assessment, I am satisfied that the development site is potential koala habitat.
That conclusion leads me to the next step, namely, a consideration of whether or not the development site is core koala habitat.
The only evidence of koala habitat on the development site is the observations of Mr Lambert. Despite a number of visits to the industrial area by persons qualified in biological science and fauna survey, no other evidence of koala habitat has been found. Furthermore, the identification of the scat by Ms Triggs throws considerable doubt on the evidence of Mr Lambert. I accept that, although Mr Lambert genuinely believed that the scats he collected were those of a koala, the weight of the evidence is that there are no koalas in the industrial area.
In the light of the evidence, I am satisfied that the site is not core koala habitat. Therefore, SEPP 44 does not operate to prevent the grant of development consent.
Visual impact and landscaping
A report on the potential visual impacts of the proposed development was prepared by Dr R J Lamb of Lambcon Associates Pty Ltd. He made the following comments:
The vegetation and landform of the development site are of a type common in the region. The development site is of low visual significance with low to moderate scenic quality.
The visual impact of the proposed development would be low to moderate from most viewpoints. The only impacts of moderate to high importance would be those from the Main Northern Railway, along the New England Highway to the east of the development site and from Dumaresq Street, Metford (moderate), Dobell Place, Metford (moderate-high) and along the New England Highway to the west of the development site (high).
The impacts could be ameliorated by retaining bands of trees around the margins of the development site and along roads within it.
The applicant tendered a landscape concept plan and suggested species selection prepared by Ginkgo Landscape Planning and Environmental Services. The landscape concept plan adopts Dr Lamb's recommendations, with its key features being as follows:
landscape buffers around the western and southern edges of the development site;
retention of the 22 possible fauna habitat trees throughout the development site;
retention of some groups of trees on lot boundaries; and
planting of native species along the side of some of the roads through the development site.
The applicant has also proposed conditions of consent which require that a detailed landscape plan is to be submitted to and approved by the council, and that the proposed lots containing the proposed landscaping screens be burdened with restrictions on development.
I am satisfied that the proposed landscaping will ameliorate the visual impact of the proposed development to an acceptable level.
Amenity of adjoining lands
Ms C W Cameron, head of the Regional Programs Unit for the Environment Protection Authority ("EPA"), gave evidence that the type of development that would be permissible with consent within the proposed subdivision, such as hazardous industry, could significantly impact on the environment and the amenity of the area. In particular, she believed odours emanating from industries on the lots in the subdivision would affect members of the community. She was also concerned about potential water quality problems arising from the occupiers of lots flushing inappropriate substances down drains, although she conceded that the controls proposed for stormwater drainage were appropriate. She believed that a better use of the site was as a buffer zone for industrial development further to the east.
However, the potential impacts which concern Ms Cameron are not an inevitable consequence of industrial development. Some industries might potentially involve significant impact, some might have minimal or no impact. What the applicant here proposes is an industrial subdivision, with roads and utility services. There is a possibility that a future occupier of a lot may conduct an industry that produces odours, or may deal inappropriately with waste. Those are matters, however, which are proper to consider when determining whether or not to grant consent to the industry proposed, and they may lead to the refusal of consent to carry out that development upon the particular lot, or the imposition of conditions designed to control or mitigate impact. But they are not matters which require assessment now.
I am satisfied that the proposed development will not adversely affect the amenity of adjoining lands.
I note at this point that the council suggested that, if consent were to be granted, then a condition should be imposed requiring the applicant to prepare a development control plan designed to take account of the matters raised by Ms Cameron. I do not propose to impose such a condition. The City of Maitland Development Control Plan No 1: Industrial Development Code provides general guidelines for the design and appearance of buildings, landscaping, parking, access and so forth in industrial development. The circumstances of each particular development on each lot can, as I have said, be taken into account when assessing a development application for that lot under s 90(1) of the EP&A Act. Any further specific controls can be provided in a development control plan if the council should in the future so desire.
Traffic
As a result of comments from the Roads and Traffic Authority, the applicant has proposed the following access arrangements:
Vehicles travelling west along the New England Highway will not be able to enter the development site.
The intersection at the entrance to the development site from the New England Highway will be constructed so that vehicles entering and leaving the development site can only do so by turning left.
At the intersection of Glenwood Drive and Thornton Road, the applicant will construct a type C right turn storage and a type B left turn lane in Thornton Road.
Mr F R Gennaoui, a traffic engineer and transport planner of Transportation Environment Consultants Pty Ltd, gave evidence for the council. His opinion was that development consent should not be refused on traffic grounds, and that matters of detail and further investigation could be covered by conditions of consent.
Sewerage and stormwater disposal
A question arose as to whether sewerage services were available or adequate for the proposed subdivision. Mr Brady and Ms Cameron gave evidence that the Morpeth waste water treatment works, to which sewage from the proposed development would be discharged, were currently heavily overloaded. Those works are currently being investigated for upgrading, which may be completed in 1997-1998. During this time, additional residential development in Thornton and Metford will increase the load on the Morpeth plant.
The applicant tendered two letters from Hunter Water Corporation, which operates the Morpeth plant and associated sewerage works. The letters stated that the loadings on the Four Mile Creek carriermain (to which the sewerage system from the development site would be connected) and Beresfield No 14 wastewater pump station (to which the carriermain drains) were acceptable. While the proposed subdivision would impose a greater load on the carriermain and it might be necessary to upgrade the main and the pumps, Hunter Water Corporation is prepared to accept waste water from the subdivision at the Morpeth plant. Some preliminary on-site treatment would be necessary.
In addition, the applicant tendered a plan showing the proposed location of 150mm sewer pipes connecting the proposed subdivision to the existing sewer main.
I am satisfied, in these circumstances, that it will be possible to provide adequate sewerage services to the proposed subdivision, and development consent should not be refused on this account.
The next question was the adequacy of a stormwater disposal system. A drainage strategy was prepared by Rust PPK Pty Ltd based on recommendations made by Dr R G Tuft, an environmental consultant specialising in waste water treatment. It is intended that a system of pipes, gutters, overland flow paths and floodways will drain into the Four Mile Creek catchment area. A system of gross pollutant traps and artificial wetlands will be provided to improve the quality of stormwater discharging into Four Mile Creek. One of the wetlands is to be at the northern end of the development site, the other is to be at the southwest corner of the development site.
I mention at this point that a concern about an increase in salinity in Four Mile Creek and on surrounding lands was raised by Mr H E Fenn, a Maitland resident who is a member of a Landcare Group in the region. As a consequence, this concern was addressed by Dr Tuft in her report. She concluded that the stormwater drainage system which is proposed were likely to ensure that the salinity levels of surrounding surface waters would not be exacerbated by the proposed development. In her view, the proposed development "is sustainable in terms of water quality exports and may provide additional dilution to surface waters."
I conclude therefore that, the issue regarding stormwater disposal has been satisfactorily addressed.
Contaminated land along the route of Glenwood Drive
Mr Brady stated that some of the land in the industrial area east of the coal haulage railway was used as a tip some years ago. He was concerned that construction of Glenwood Drive could disturb material which had been disposed of in the tip and result in runoff of contaminants into nearby wetlands.
Survey plans were tendered showing the location of the tip as being to the north of the proposed route for Glenwood Drive. The proposed route does not cross the tip area at any point. Accordingly, I do not believe this is a matter of concern.
Conclusion
In summary, my findings are as follows:
Industrial development is currently permissible with consent and has been so for over 20 years. Although a change in the planning controls for the industrial area is currently under consideration, it remains uncertain, and does not require consent to be refused.
Development consent under SEPP 46 is not required as a precondition to the grant of development to the subdivision application or the road application.
The most serious potential impact of the proposed subdivision is the impact on fauna, in particular, on the greater broad-nosed bat and squirrel glider. However, in the particular circumstances, the impact is not significant. The creation of a fauna reserve and retention of roost trees are adequate mitigation proposals.
The development site is not core koala habitat. Indeed, there is no evidence of koalas upon the industrial area.
Visual impact and the impact of traffic can be ameliorated by imposing suitable conditions of consent.
The potential impacts on the amenity of adjoining lands primarily relate to the possible impacts from development on the development site once it has been subdivided. Those impacts should be assessed and controlled when development applications in respect of the subdivided lots are considered.
I have concluded that the subdivision application and the road application should be approved, subject to appropriate conditions of consent, which I now turn to consider.
Conditions of Consent
In accordance with the Court's rules, the council tendered a draft set of conditions which it would seek to impose if the Court were minded to grant development consent. There was disagreement between the council and the applicant in relation to some of those conditions. I attach, as annexures "C" and "D", the conditions which I propose to impose respectively in relation to the subdivision application and the road application.
I comment in relation to the more significant conditions as follows:
Conditions relating to the subdivision
Condition 1
Two matters arise here.
First, the council submitted that consent should be deferred until:
SEPP 44 and SEPP 46 had been complied with;
a management plan approved by the National Parks and Wildlife Service for the habitat of endangered species had been submitted; and
a management plan approved by the EPA for the wetland detention system, containing full specifications for construction and maintenance, had been submitted.
For the reasons which I have already given, I have found that SEPP 44 has been complied with, and that compliance with SEPP 46 is not a necessary precondition for granting of consent. The commencement of consent should not be deferred on these grounds.
The two management plans suggested by the council are provided for in conditions 33 and 30 respectively, and I see no reason why commencement of the development consent should be deferred while they are produced.
The second matter here is minor. The council suggested a compliance condition in more general terms than condition 1 but I prefer the more specific approach contained in the applicant's draft.
Conditions 2, 3, 4, 5 and 6
These conditions follow generally those proposed by the applicant. I make, however, the following particular comments:
(a) In condition 4, I have acceded to the applicant's version of this draft because, first, it clarifies what clearing of vegetation is permitted by the development consent, and, secondly, it places the conditions for removal of trees in the alternative rather than conjunctively, because the development consent effectively authorises the removal of some trees;
(b) In condition 5, I have rejected the council's suggestion that the applicant be required to maintain the landscaping in perpetuity because, as Mr Austin correctly pointed out, the applicant's legal interest in the lots will ultimately cease. Instead, I have adopted the applicant's suggestion of a public positive covenant in favour of the council.
Conditions 7, 8, 9 and 10
Once again, these conditions follow generally those proposed by the applicant. In particular, I have rejected the council's suggestion that the applicant provide a letter from the Hunter Water Corporation stating that the Morpeth waste water treatment works have sufficient capacity to meet additional loads arising from the subdivision. The requirement in condition 7 to obtain a certificate under s 50 of the Hunter Water Board (Corporatisation) Act 1991 will permit the Hunter Water Corporation to seek contributions from the applicant for augmentation of its services, and the council's suggestion is therefore unnecessary.
Condition 13
The applicant suggested a condition requiring it to have satisfied all relevant conditions prior to the release of any linen plan. The council required a further condition requiring a site inspection to ensure that compliance had occurred. This condition adopts both suggestions.
Condition 18
Two matters arise here. First, there is the question of the upgrading of Thornton Road itself, and secondly, there is the question of constructing and upgrading an intersection between the access link road, Glenwood Drive, and Thornton Road.
As to the intersection, the council sought a condition in the terms which I have adopted in condition 18.
As to the upgrading of Thornton Road itself, there was substantial dispute. The council sought a condition which obliged the applicant itself to carry out the works to widen the road to accommodate cumulative traffic generated by the proposed development. Mr Kildea submitted that such a condition is authorised by s 91(3)(f) of the EP&A Act.
Mr Austin opposed the imposition of such a condition on the ground that it could not be imposed under s 91(3)(f) because the upgrading was not solely required by the proposed development, there being other developments (in particular the nearby residential subdivision known as Thornton County) which contribute to its use. He also submitted that such a condition could not be imposed under s 94 of the EP&A Act, because a necessary precondition to the imposition of a condition under that section is the existence of a contributions plan prepared under s 94AB. No such plan exists.
In my opinion, s 91(3)(f) authorises the imposition of a condition requiring the carrying out of works. But here it would be unreasonable to require the applicant itself to upgrade Thornton Road, in circumstances where the proposed development contributes only partly to the need for upgrading. The LES estimated that Thornton Road presently carries 6763 vehicles per day, and tabulated traffic figures (derived from a study on the traffic impact of future land releases in Thornton) tendered by the applicant showed that 27.9% of the expected use of that road could be attributable to the whole of the industrial area.
What is more reasonable is that the applicant contribute to the upgrading, rather than carrying out the work itself. However, an obligation to make such a contribution cannot be imposed upon the applicant in the absence of a contributions plan (as provided in s 94(7) and see Trehy & Ingold v Gosford City Council [1995] NSWLEC 113; (1995) 87 LGERA 262 at 272).
Accordingly, I have not imposed the condition which the council sought.
Condition 29
The version of this condition which the applicant sought is more expansive and detailed than that sought by the council, and it accords with the recommendations of Dr Tuft and endorsed by Ms Cameron. This condition is therefore substantially in the form suggested by the applicant.
However, the requirement that the applicant apply under s 17I of the Pollution Control Act 1970 accords with the suggestion of the council.
Conditions relating to the link road (Glenwood Drive)
Condition 2
The council sought a condition requiring the applicant to upgrade Thornton Road. For the reasons I have expressed in relation to condition 17 of the subdivision condition, I reject such a condition.
Condition 17
This proposed condition deals with the design of the stormwater drainage on Glenwood Drive. The council proposed that the stormwater drainage system be capable of accommodating discharges from the total catchments of the industrial area when fully developed. The applicant claimed that this would be unfair and that the applicant should only be obliged to deal with existing across-land flows. I propose to impose the condition suggested by the applicant. If there is future development in the road catchment area, it should be the responsibility of that developer (and not of the applicant in these proceedings) to provide adequate drainage for that development.
Orders
In accordance with the foregoing, my formal orders are as follows:
1. The appeals are upheld.
2. Development consent is granted for:
(a) the subdivision into 78 industrial lots of land at Thornton, being lot 28 in DP 849873, subject to the conditions annexed and marked "C", and
(b) the construction of a road, road tunnel and intersection on land at Thornton being part of lot 232 in DP 567290 and part of lot 3 in DP 554375, subject to the conditions annexed and marked "D".
3. The exhibits may be returned, with the exception of exhibits Y, 8, 11, 34 and 35.
I make no order as to costs.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 29 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.
Associate
RE: SUBDIVISION
(a) "overall site" means lot 28 DP 849873; and
(b) "development site" means that part of lot 28 in DP 849873 which is to be subdivided into 78 lots as is depicted in the plan referred to in condition 1(a).
Compliance
1. Development of 78 industrial allotments within lot 28 DP 849873 at New England Highway Metford, shall be carried out generally in accordance with:
(a) Plan prepared by Asquith & deWitt Pty Ltd, D10910/1 dated 15 October 1993.
(b) Landscape Concept Plan prepared by Ginkgo Landscape Planning and Environmental Services dated November 1995 and December 1995 (except as to the western boundary landscape setback or the location of basin 1).
(c) Drainage Strategy 67G017A Newcastle/561 prepared by Rust PPK Pty Ltd dated November 1995, and drawings 67G017A, 01/2, 02/2, 02/B, 03/2, 04/2, 05/2 (but not as to internal sewerage layout)
except as amended by this conditions.
Landscaping
2. A detailed landscape plan is to be submitted and approved by the council.
The plan is to indicate:
(i) The location of all road paving, footpaths and landscaped areas within the development site.
(ii) Types of species to be planted (locally indigenous species are preferred to provide foraging habitat).
(iii) The mature height and spread of proposed trees, shrubs and ground covers.
(iv) The location of the 22 habitat trees in relation to allotment boundaries. The plan shall indicate that habitat trees identified in the Landscape Concept Plan are to be retained, that no buildings will be constructed within ten metres of the trunk and that no pavements will be constructed within five metres of the trunk.
3. The developer is to provide to council a bushfire hazard assessment of the overall site in accordance with the Department of Urban Affairs and Planning's Circular C10.
4. The applicant shall not remove any tree or clear understorey vegetation within the overall site which is not directly affected by construction of road, drainage or utility services. No tree exceeding three metres in height or having a branch spread of three metres or more in diameter is to be removed from the overall site unless:
The removal is essential in order for the development under this consent to proceed; or
Consent to the removal of the tree(s) has been granted by council in accordance with the provisions of cl 29 of the Maitland Local Environmental Plan 1993.
5. The landscaped area of the development site shall be provided and maintained at all times in accordance with the approved detailed landscape plan. The applicant shall prepare:
(a) an instrument pursuant to section 88B of the Conveyancing Act 1919 incorporating a restriction as to user such that:
(i) Lots 1, 6, 7, 8, 11, 12, 13, 14, 24, 25 and 26 shall be burdened with a restriction on any development excluding utilities and interallotment drainage within the arboreal screen of variable width in accordance with the Landscape Concept Plan.
(ii) Lots 15, 16, 17, 18, 19, 39, 40, 54, 55, 56, 66, 67, 68, 69 and 78 shall be burdened with a restriction that prohibits uses other than driveway crossings and landscape within an area of variable width in accordance with the Landscape Concept Plan.
(iii) Any lot containing a habitat tree as identified in the Landscape Concept Plan shall be restricted such that the tree will be retained, no building will be constructed within ten metres of the trunk, and no pavement will be constructed with five metres of the trunk.
and
(b) a public positive covenant in favour of the council for the maintenance of such landscaped area.
6. (a) The applicant proposes to carry out the development in stages and shall not in any 12 month period clear more than two hectares of native vegetation for the construction of road drainage and utility services provided however that in the event that the staging needs to be modified such that the applicant requires to clear more than two hectares of native vegetation in any 12 month period, it shall notify council and make the appropriate applications for consent to the Director-General of the Department of Land and Water Conservation, and receive approval prior to works commencing.
(b) The applicant shall, if necessary, obtain a licence to take or kill protected fauna pursuant to section 120 of the National Parks & Wildlife Act 1974.
Utility Services
7. A certificate under section 50 of the Hunter Water Board (Corporatisation) Act 1991, shall be submitted to the council prior to the release of any linen plan. Applications for section 50 certificates are to be made direct to the Hunter Water Corporation.
8. The submission of documentary evidence from Orion Energy that satisfactory arrangements have been made for:
(i) The provision of easements in favour of Orion Energy over private land for existing and proposed power lines and where the development requires the relocation of power lines or other assets of Orion Energy; and
(ii) The provision of a grid based (overhead) electricity supply to each of the resultant lots of the subdivision.
9. The submission of written evidence from Hunter Water Corporation, Telstra Australia, and where practicable, Newgas and Orion Energy, that satisfactory arrangements have been made for the installation of either service conduits or steel mains in the public road crossings prior to the construction of the road pavement.
10. Water and sewerage facilities are to be provided to each allotment within the proposed subdivision.
Contributions/Fees
11. A final survey plan endorsement fee of $100 shall be paid to the council prior to release of the plan.
12. A final plan of survey and 11 copies shall be submitted to the council for endorsement within five years of the date of the approval of the engineering plans and specifications.
13. Prior to release of a linen plan for any stage (being a part of the development as determined from time to time by the applicant), and as shown in each linen plan the applicant shall have satisfied all relevant conditions of this consent that are applicable to that stage. In this regard the applicant shall upon completion of the development make an appointment with the council's development and environmental services department for a site inspection to ensure that the council can be satisfied that all of the conditions have been satisfactorily complied with.
Traffic/Roads/Footpaths
14. Sampling and testing the compaction of the road subgrades and pavements as detailed in chapters 4 and 7 of the Department of Housing Construction Specification are to be carried out when directed by the council.
15. The collector road linking the subdivision and Thornton Road is to be 24 metres reserve width.
16. This approval does not include a road connection to the residential subdivision on the western side of Four Mile Creek.
17. The collector road linking the subdivision and Thornton Road is to be constructed and dedicated as part of stage 1 of the subdivision.
18. In respect of each stage of the development, the intersection of Glenwood Drive and Thornton Road shall be constructed or upgraded to a standard sufficient to accommodate the cumulative traffic to be generated by the development at that stage. Such standard to be determined for each stage by the Roads and Traffic Authority ("RTA"). Detailed plans are to be submitted and approved by the RTA and the council.
19. Samples of all road pavement materials intended to be used, are to be submitted and tested in accordance with the requirements detailed in chapter 7 of the Department of Housing Construction Specification, 1989 edition.
20. All sampling and testing of road subgrades and pavements (with the exception of proof rolling) is to be carried out by a registered N.A.T.A. laboratory and copies of all geotechnical test reports are to be submitted to the council. The council will not be responsible for the cost of any such sampling and testing.
21. All road and drainage works are to be designed and constructed to cater for normal industrial loadings.
22. The laying of the 40mm depth of A.C. seal is to be preceded by the application of an initial hot bitumen flush seal (10mm pre-coated aggregate).
23. The applicant shall construct a type C right turn storage and type B left turn lane at the intersection of Glenwood Drive and Thornton Road.
24. If it is intended to provide traffic control devices in the form of thresholds, roundabouts, squeeze points, medians or any other form of approved traffic control device, whether or not this involves intersections with highways, main roads and arterial roads, the applicant must apply for separate formal approval of the proposal from the Local Traffic Committee. The application is to include a plan showing the location and type of facility/facilities proposed. The Traffic Committee's approval is to be obtained prior to the council approving the subdivision engineering plans.
25. The applicant must ensure consultation and compliance with the RTA's Traffic Advisory Committee requirements in regard to proposed access points to the development site.
Drainage and Sediment/Erosion Control
26. Interallotment drainage is to be provided to all lots which cannot drain roof stormwater direct to a road, and should be discharged into the stormwater control system. In order to facilitate acceptance of the 88B Instrument by the Registrar General the interallotment drainage system is to be contained wholly within the development site and should not interconnect with any existing or future systems.
27. The surface level of all lots are to be above the 1:100 year storm level. A hydrographic analysis of the watercourse is to be carried out to determine this level. If any lots are affected by this condition then the survey plan is to have a "Restriction As To User" notation placed on it and a clause similar to the following is to be included in the 88B Instrument:
No habitable buildings are to be constructed below the level of the 1:100 year storm contour within the watercourse. The floor level of all habitable buildings is to be constructed 500mm above this level. No outbuildings or structures of a permanent nature are to be constructed below the level of the 1:20 year flood or storm levels.
28. Engineering plans are to be submitted and approved prior to commencement of works for each stage. Plans are to include a soil erosion and sedimentation control plan. The council shall consult with the EPA and the Department of Land & Water Conservation in its consideration of this condition.
29. The applicant will design and install a stormwater control system capable of ensuring that post development discharges from the development site have no significant adverse impact on downstream properties and wetlands in terms of soil erosion and sedimentation build up, pollution and nutrient build up. The design of the stormwater control system will incorporate the following elements:
(i) Gross pollutant trap(s) upstream of basin 1 and basin 2 in the drainage strategy, and for those basins the following criteria (ii) to (viii) shall apply.
(ii) A length to width ratio of at least 3:1 or other measures to prevent short-circuiting such as baffles.
(iii) A circuitous flow-path to further prevent short-circuiting.
(iv) A surface area to achieve a desired 60% reduction in phosphorus loads received.
(v) Capture of the first 13mm of rainfall (first flush treatment) and bypass of higher flows to reduce the risk of scouring of the wetland.
(vi) Design retention time of 13 days for the first flush.
(vii) Maximum depth of five metres. Safety aspects must be addressed in accordance with the guidelines contained in AR&R 1987.
(viii) Maximum batter slopes of 1V:6H down to 800mm water depth.
The applicant is required to lodge with the EPA an application under s 17I of the Pollution Control Act 1970. Upon approval by the EPA and the Department of Land & Water Conservation the detailed design and analysis is to be submitted to the council for approval as part of the engineering plans for the subdivision.
30. A management plan is to be provided detailing the design and construction of an internal water quality control system capable of the removal of all nutrients and chemicals draining from the development site, which is not to enter the water quality system, not including runoff from roof areas which is accommodated in the proposed interallotment drainage system or stormwater control system. This plan is to be submitted and approved by the EPA.
31. The applicant shall manage the drainage reserves including wetland basins at no cost to the council in the manner proposed in the plan of management for a period of 12 months from the date of registration of the linen plan which provides for those reserves and if required by the council will execute an agreement with the council to this effect prior to the release of the relevant linen plan.
32. The proposed linen plans shall provide that:
(i) the part of lot 27 which the detailed engineering plans show is to be a wetland basin shall be a separate lot and be dedicated to the council as a drainage reserve; and
(ii) the parts of lots 1-6 which are likewise to be a wetland basin shall also be a separate lot for the same purpose.
General
33. Prior to the issue of the first linen plan the applicant will lodge with the council:
(a) Evidence that the owner of lots 231 and 232 DP 567290 and lot 1 DP 188036 will agree to a restriction as to user to be registered pursuant to Section 88B of the Conveyancing Act to ensure that no development will occur on the land shown "Fauna Reserve" on figure 4.1 of the ERM Resource Planning Fauna Impact Statement of February 1995 ("the FIS") [excluding the railway corridor and the Link Road (Glenwood Drive)] which is inconsistent with environmental protection.
(b) A plan of management for the area of proposed environmental protection which is generally consistent with the objectives for the land set out in chapter 6 of the FIS.
RE: LINK ROAD
General Provisions
1. The development of an access road between lot 28 DP 849873 and Thornton Road, Thornton, as well as a tunnel and an intersection shall be carried out generally in accordance with:
(i) Plan prepared by Asquith & deWitt Pty Ltd, 10910AB
(ii) Plans prepared by Rust PPK Pty Ltd, 67E129A 01, 02 & 03
except as amended by these conditions.
2. In respect of each stage of the development, the intersection of Glenwood Drive and Thornton Road shall be constructed or upgraded to a standard sufficient to accommodate the cumulative traffic to be generated by the development at that stage. Such standard to be determined for each stage by the Roads and Traffic Authority ("RTA"). Detailed plans are to be submitted and approved by the RTA and the council.
3. A sub-surface investigation is to be carried out as detailed in the Australian Road Research Board Special Report No 41 in order to determine the subgrade Californian Bearing Ratio to AS 1289 E1.1 and the road pavement depths are to be determined by the method detailed in that report.
4. Samples of all road pavement materials intended to be used are to be submitted and tested in accordance with the requirements detailed in chapter 7 of the Department of Housing Construction Specification, 1989 edition.
5. Sampling and testing of the compaction of the road subgrades and pavements as detailed in chapters 4 and 7 of the Department of Housing Construction Specification are to be carried out when directed by the council.
6. All sampling and testing of road subgrades and pavements (with the exception of proof rolling) is to be carried out by a registered NATA laboratory and copies of all geotechnical test reports are to be submitted to the council. The council will not be responsible for the cost of any such sampling and testing.
7. The laying of the 32mm depth of AC seal is to be preceded by the application of an initial hot bitumen flush seal (10mm pre coated aggregate).
8. If it is intended to provide traffic control devices in the form of thresholds, roundabouts, squeeze points, medians or any other form of approved traffic control device whether or not this involves intersections with highways, main roads and arterial road, the applicant must apply for separate formal approval of the proposal from the Local Traffic Committee. The application is to include a plan showing the location and type of facility/facilities proposed. The Traffic Committee's approval is to be obtained prior to the council approving the subdivision engineering plans.
9. The proposed road is to be dedicated as public road with a reserve width of 24 metres.
10. A geotechnical assessment of the existing haul road pavement and surface is to be undertaken to determine if it is capable of withstanding future industrial traffic loads and volumes, in order to determine which parts are to be reconstructed to the standards specified by this consent.
11. The minimum height clearance for the proposed tunnel, when measured at the lip of gutter line is to be 4.6 metres. Appropriate warning and clearance signs are to be provided.
12. The minimum width of sealed pavement is to be 9 metres wide with a painted edge line 3.5 metres either side of the centreline. The total pavement (formation) width is to be 13 metres wide. The road is to be asphaltic concrete (or other surface approved by the city engineer) sealed over its full length.
13. The applicant must upgrade Glenwood Drive to the council's normal industrial subdivision standards upon lodgement of subdivision applications which front onto the road. This will require installation of kerb and gutter to both sides of the road to provide a carriageway width of 13 metres, shoulder construction and asphaltic concrete seal full width.
14. All works are to be carried out in accordance with the council's normal rural residential subdivisional road and drainage standards.
Other Government Authorities
15. Approval of Department of Land and Water Conservation for the removal of bushland if required by SEPP 46.
Drainage and Sediment/Erosion Control
16. An "Erosion and Sediment Control Plan" (ESCP) is to be submitted to the council and approved prior to works commencing.
17. A stormwater drainage analysis is to be carried out and a stormwater drainage system for the road is to be designed and installed with defined objectives of dealing with road runoff and existing across-land flows and managing quality control of such runoff, prior to it entering watercourses.
Contributions/Fees
18. A final plan of survey and 11 copies shall be submitted to the council for endorsement within five years of the date of approval of the engineering plans and specifications.
19. A final survey plan endorsement fee of $100 shall be paid to the council prior to release of the plan.
20. Engineering plans are to be submitted and approved prior to commencement of works. Plans are to include an Erosion and Sedimentation Control Plan (ESCP).
21. Where the proposed development involves the disturbance of any existing survey monuments, those monuments affected will need to be relocated by a surveyor registered under the Surveyors Act. A plan showing the relocated marks will then be required to be lodged as a matter of public record at the Land Titles Office.
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