CITATION: Armatos Pty Ltd v. Kingborough Council
 TASRMPAT 176 – Supplementary decision
PARTIES: Appellant – Armatos Pty Ltd
Respondent – Kingborough Council
ADDRESS: Lorkins Road, Adventure Bay
TITLE OF TRIBUNAL: Resource Management and Planning Appeal Tribunal
JURISDICTION: Planning Appeal
FILE NO/S: 294/06 S
DELIVERED ON: 7th September 2009
DELIVERED AT: Hobart
HEARING DATE: Submissions were made and responded to in writing
DECISION OF: SJ Cooper, Chairman
1. After hearing the parties further in relation to the terms of the conditions that
should attach to any permit the Tribunal, pursuant to section 59 (4) of the Land
Use Act, grants a permit in respect of this matter and directs that that permit is
to contain the following specified conditions:
“1. Approval is granted to subdivide the land comprised in
Certificate of Title Volume 104630 Folio 8 of the Register
situate at Lorkins Road, Adventure Bay, Bruny Island (the
“land”) generally in accordance with development
application DAS – 2006 -16 into 9 lots plus balance in
accordance also with the proposal plan of subdivision dated
22nd July 2008. Any amendment, variation or extension of
this Permit requires further planning consent of Council.
2. Titles Office lodgement fees being paid to Council or, in the
case of ‘Early Issue’ lodgement, direct to the Recorder of
3. Final Plan of Survey being provided together with Schedule
of Easements, a copy of the survey notes, and a copy of the
balance plan. Payment of Council’s fee for sealing the Final
Plan of Survey and Schedule of Easements.
4. Final Plans lodged for sealing to Council must clearly show
building envelopes on each of the proposed 9 lots and
balance in accordance with the amended subdivision plan
prepared by N McGuire and Associates and dated 22nd July
2008 and to the satisfaction of the Manager Planning.
5. Agreement under Part 5 of the Land Use and Planning
Approvals Act 1993 is to be entered into extending to all the
land the subject of this permit (including the balance lot) and
be registered at the same time as the sealing of the first plan
of sub-division. The Agreement is to:
• Restrict all dwellings and outbuildings (including
water tanks whether for domestic or fire-fighting
purposes) to the building envelopes shown on the plan
• Incorporate each of the requirements of the
Environmental Management Plan prepared by Mr
Phillip Millin and dated November 2008;
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• Ensure the implementation of each of the specific
recommendations contained in the bushfire
assessment reports of Mr Von Krusentierna dated
March 2006 and 10th November 2008 (with the latter
recommendation prevailing in the event of any
• All costs associated with the Part 5 Agreement are to
be borne by the Developer
6. The Nature Conservation Plan dated August 2008 is to be
implemented in accordance with the timetable specified in
that Plan. The obligation for ongoing management is with
each land owner.
7. No plant species nominated as noxious or an environmental
weed or listed within Schedule 9 of the Kingborough
Planning Scheme 2000 is to be planted or maintained on any
lot including the balance.
8. Colours and finishes of any structure must be of appropriately
muted earthy colours and blend rather than contrast and no
reflective materials or finishes are to be used on external
9. Cut and fill for building and construction works including
driveways is to be minimized.
10. All mains power supplies are to be underground.
11. The design and construction works shall be carried out to the
satisfaction and approval of the Director Infrastructure and
Services and as follows:
• The current Kingborough Council standard
construction drawings and specifications currently
available on council’s internet site
• All current Australian standards;
• Australian rainfall and run off guide lines;
• Subdivision development guidelines, lodgement of
permit to preconstruction;
• Development and capital works inspection and
administration guidelines. Construction Inspection
audits to practical completion and final inspection;
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• Kingborough Council standard testing methods and
• The engineering design plans shall include but not be
limited to adequately detailed road, access and storm
water plans, including associated traffic, pedestrian
and hydraulic services contained within the full extent
of the subdivision and demonstrating compatibility
with adjacent areas;
• The engineering plan approval shall be valid for a
maximum period of two years from the date of
Council endorsement, and if practical completion has
not been achieved within the time limit, the
engineering plans shall be subject to re-assessment in
light of the appropriate prevailing Council standards
at the time;
• A design report on the new road and accesses to all
lots shall be provided to the approval of the Director
Infrastructure and Services; and
• The engineering plans and specifications shall be
prepared and certified by:
(a) An accredited professional engineer for the
appropriate works in accordance with the
requirements of the Institute of Engineers
Australia and to the satisfaction and approval
of the Director Infrastructure and Services;
(b) Another person approved by the Director
Infrastructure and Services provided that such
plans and specifications have been certified as
correct by a suitably accredited engineer
appropriate for the specific works in
accordance with requirements of the Institute
of Engineers Australia.
12. The works shall be supervised by the engineer or the
certifying engineer and in accordance with Council’s audit
All enquiries and matters pertaining to the works during the
construction and maintenance stages shall be directed to the
applicant or applicants’ representative in the first instance,
until the works have successfully undergone the requisite
26-week maintenance period and have been taken over by
File No: 294/06S Page 4 J 176 - 2009
13. Council will provide a unique KC road number for the
proposed road within the development. This number shall
then be referenced on design and As-Constructed drawings.
The applicant shall submit to Council within one month of
the permit being issued a list of preferred names for the new
road or alternately select a name from Council’s preferred
road name listing.
Council will endorse (or otherwise) the proposed road name
or seek approval from the Nomenclature Board.
Should the applicant not submit or select a road name
Council will allocate a name from the preferred road name
All new road signs related to this development are to be
installed by Council at the applicant’s cost; the actual
amounts shall be paid prior to engineering plan approval and
shall be based on the prevailing rates at the time of payment.
14. To stage the development, the applicant shall submit to the
Council for consideration a staging plan, as applicable. This
• All proposed stages shall be clearly outlined and
identified with lot numbers;
• The road layout shall be shown with individual road
segments identified with the appropriate “KC” road
• Operable vehicular and pedestrian access and
stormwater connection to each allotment contained
within each stage shall be provided and approved by
the Council prior to commencement of the next
• All upstream stormwater reticulation terminations
shall be sealed and capped between stages;
• Temporary stormwater table drains and headwall
connections shall be provided at all upstream
terminations as required, to provide for and collect
upstream stormwater flows;
• Road closure barricading and signage with adequate
vehicular turning facilities shall be provided at
temporary road terminations;
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• All staged upstream stormwater services shall be
flushed and cleaned prior to connection into the
operative downstream reticulation;
• A request for an amendment to the planning permit
must be lodged and approved by Council for any
variances to the approved staging sequence.
15. The applicant shall not commence civil construction works
within a road reservation until a ‘Permit to carry out works
within a Council road reservation’ has been issued by
16. An 18m road reservation with 25m minimum diameter
turning head shall be provided for the new road and shown as
"Road" on the Final Survey Plan. The road reservation shall
be splayed as shown on the proposal plan. On the balance lot
a 15m wide splay shall be provided on the eastern corner of
Lorkins Road and Kellaway Road.
The applicant shall arrange for the necessary transfer of the
road reservations to Council at the time of lodgement of the
Survey Plan for sealing at no cost to Council.
17. Embankment easements shall be created over all cut or fill
embankments extending 0.50m minimum beyond either the
toe or the top of the embankment and shall be shown on the
Final Survey Plan lodged for sealing.
18. Road widening shall be provided at 7.5m from the centreline
of the existing carriageway of Lorkins Road and Kellaway
Road and shall be created as a separate lot and shown as
"Road" on the Final Plan of Survey.
The applicant shall arrange for the necessary transfer of the
road reservations at no cost to the Council at the time of
lodgement of the Plan of Survey for sealing.
19. Vehicular accesses a minimum of 3.60m wide shall be
constructed to all lots from the edge of the new road
carriageway to the boundary of the lots including culverts and
headwalls, all in accordance with Council’s standard
construction drawings and specifications and as follows:
• Maximum grade of 1 in 5 onto the lot.
• Sub base course shall be a minimum 150mm
approved compacted crushed rock over an approved
sub grade and appropriate Geotextile.
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• Base course shall be a minimum 100mm approved
compacted crushed rock.
• The surface (wearing course) shall be a 2-coat spray
seal consisting of one application of bituminous
binder followed by one application of aggregate
followed by a further application of bituminous binder
and another application of a smaller sized aggregate.
20. Only one single driveway for lots 4 and 5 shall be constructed
to the lots proper. Reciprocal rights-of-way shall be placed
on both these titles for this single driveway with a covenant
that only a single driveway is permitted. Both property
owners shall share equally the maintenance cost. Appropriate
drainage shall be provided for the access driveway.
21. A 6 metre wide right of way to Lorkins Road for rear fire
access from the new subdivision road shall be provided and a
suitable carriageway constructed within it to the satisfaction
of Tasmania Fire Service prior to approval of the engineering
plans. A sealed cross over from the new subdivision road to
the start of the right of way shall be provided and shown on
the engineering plans.
22. Easements for proposed open drains and any stormwater
pipelines on private property and the right of way to
Resolution Bay Road for rear fire access shall be shown on
the Plan of Survey lodged for sealing.
Specific easements as required by other authorities shall also
be provided and shown on the Plan of Survey lodged for
23. Facilities shall be provided to convey all road and lot
drainage and concentrated waters through the development to
a clearly defined water course via a treatment system to the
wet land (for details see road drainage condition). Any pipe
system shall be a minimum 150mm diameter sized to contain
the 1 in 20 year ARI storm event from contributing upstream
catchment. The wet land drainage under the new subdivision
road shall take the 1 in 100 year ARI storm event.
24. Site filling that exceeds a depth of 300 mm shall be placed in
accordance with AS3798 guidelines for commercial and
residential developments 1996. Upon completion of the
works, the supervising engineer shall confirm in writing that
the works have been carried out in accordance with AS3798.
The location of fill areas shall be shown on the “as
constructed drawings” and Final Plan of Survey.
File No: 294/06S Page 7 J 176 - 2009
25. The new lots shown on the proposal plan shall be endorsed
• The Council cannot provide a supply of water or
sewerage service; and
• No structure(s) for the purposes of a dwelling shall
occur on the lots unless a water storage tank having a
minimum capacity of 22,500 litres is installed, and the
water storage tank must be located within the building
26. Underground power shall be provided to each lot in
accordance with the requirements of Aurora Energy. Any
substation for power shall be located on land other than
27. Telecommunications services shall be provided to each lot in
accordance with the requirements of the telecommunication
agencies and in compliance with the provisions of the
Kingborough Planning Scheme 2000.
28. A copy of relevant compliance certificates from Aurora
Energy shall be submitted to the Council confirming that all
requirements have been carried out, and that individual future
owners will only be liable for their individual property
connections at the time of dwelling construction and will not
be liable for any further network extension / upgrade costs.
29. Erosion and sedimentation control measures (including for
stockpile areas) are to be implemented during the
construction phase of the subdivision with special attention to
Prior to the approval of engineering plans an erosion and
sedimentation control plan shall be prepared by a suitably
qualified engineer in accordance with the following:
• Soil and water management on building and
constructions sites NRM South Derwent Estuary
Guidelines 2009; and
• The satisfaction of the Director, Community Planning
30. All roads and nature strips adjoining the construction site
shall be kept clear of all construction materials and debris
during the construction period.
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Any mud tracked onto Council roadways during construction
shall be properly cleaned off at least by the end of the
relevant working day to Council approval. Failure to do so
may result in Council’s Works Department undertaking the
clean up works, with all costs, plus overheads being invoiced
directly to the applicant.
31. No works shall commence on site, or within a Council
roadway, without a ‘Start of Works Subdivisions’ and
‘Development Application’ notice being lodged with, and
accepted by the Director Infrastructure and Services.
A least 5 working days notice of intention shall be given:
• To commence works.
• To resume works after works on site has ceased for a
period of six (6) working days or more.
32. Prior to the commencement of any civil works and drainage
works being carried out within “Council Road Reservations”
the applicant shall:
• Apply for and receive a permit to conduct activities
within Council road reservation(s) (Forms A and B);
• Acknowledge receipt of permit and advise of
intention to commence works within Council road
reservation (Form C); and
• Attention is drawn to permit condition E69 Notice of
Completion of Works within Council road reservation
33. At practical completion and the satisfactory completion of all
mandatory audit inspections the supervising engineer shall:
• Request a joint on site practical completion inspection
with the Council’s authorised representative (within 5
working days of Council’s receipt of the request);
• Provide written conformation that the works have
been substantially completed in accordance with the
plans and specifications and that the appropriate
levels of quality and workmanship have been
• Provide a copy of relevant documentation that all
requirements have been carried out as applicable by
File No: 294/06S Page 9 J 176 - 2009
• Tasmania Fire Service
• Aurora Energy
• Engineer’s certification that site filling exceeding
300mm has been placed in accordance with AS3798
(Guidelines on Earthworks for Commercial and
Residential Developments) as amended from time to
time. Fill areas shall be shown on the ‘As
• Provide a signed checklist for ‘as constructed’
• Submit A1 size ‘As Constructed’ drawings in
accordance with Council’s Survey Brief, at a scale of
1:200 or 1:500 as appropriate, unless approved
otherwise, certified as correct by a registered land
surveyor in accordance with Council’s Survey
requirements for subdivisions, developments and
capital works projects;
• Submit A1 size ‘As Constructed’ drawings of all
traffic management signage, pavement markings and
associated infrastructure as approved by the
Department of Infrastructure, Energy and Resources;
• Provide digital information on compact disc clearly
labelled with the Project name and stage. The disc
shall be virus checked and be endorsed as to the
software and version utilised (Digital information
shall be provided in AutoCAD DXF/DWG format);
• Council will issue a Certificate of Practical
Completion including a minor defects list, upon the
successful completion of:
• All mandatory audit inspections
• Provision of acceptable documentation
• Practical completion inspection
• Provision of Bond and Bank guarantees
• The effective date of the Certificate of Practical
Completion shall be the latest on site inspection date.
34. All works associated with this subdivision are to be
completed to the satisfaction of the Director Infrastructure
File No: 294/06S Page 10 J 176 - 2009
and Services prior to the sealing of the Final Plan of Survey
35. A re-peg survey is to be undertaken by a registered surveyor
upon completion of subdivision construction works. A copy
of the re-peg survey notes are to be lodged with Council,
together with evidence that they have been registered at the
Land Titles Office. In cases where a Bond and Bank
Guarantee are lodged, the cost of the re-peg survey is to be
included in the Bond and Bank Guarantee.
36. The satisfactory completion of all public infrastructure shall
be considered achieved when:
• A Certificate of Practical Completion has been issued.
• Minor defects and any defective works have been
satisfactorily rectified at the completion of the
statutory 26 week maintenance period.
• A further 26 week maintenance period may be applied
to the defective works after rectification.
• Council shall be entitled to call upon the bond and
bank guarantee funds to complete or rectify any
outstanding defective works after the expiry of the
• At the end of the statutory 26-week maintenance
period, the supervising Engineer shall request a joint
on site inspection with the Council’s authorised
representative to confirm that all outstanding practical
completion, minor defects and defective works have
been satisfactorily rectified.
• Upon satisfactory completion of all outstanding
practical completion, minor defects and defective
• Council will issue a notice of satisfactory ‘Final
Inspection’ and all of the works shall be the sole
responsibility of Council.
• The effective date of the Certificate of Final
Inspection shall be the latest on site inspection date.
• After take over of the works, it shall be the
responsibility of the supervising engineer or applicant
to request Council to release all Bond and Bank
File No: 294/06S Page 11 J 176 - 2009
37. The total area of the balance lot is to be the subject of a
Conservation Protection Covenant under Part 5 of the Land
Use Planning and Approvals Act 1993 or Section 34 of the
Nature Conservation Act 2002. The covenant is to be
generally in accordance with the comment which was
tendered in evidence at the hearing: appendix 2 to exhibit
In the initial six (6) months of the date of the issue of the
titles, signs are to be erected indicating the existence of the
Conservation Zone and prohibiting unauthorized entry, and
the removal of any vegetation.
38. If a Part 5 Agreement is entered into in accordance with the
condition 36 then it is to be included with the Final Plan for
sealing to the satisfaction of the Manager – Planning with all
costs associated with the Part 5 Agreement to be borne by the
39. Reporting to Council on the progress with respect to the
implementation of the recommendations in the
Environmental Management Plan for the site is to be
undertaken as recommended by an independent consultant to
the satisfaction of the Manager Planning.
40. The infestations of declared and environmental weeds as
identified in the Botanical Survey and Fauna Habitat
Assessment for the site (North Barker 15.12.2005) must be
effectively controlled prior to any works occurring on site.
This must be carried out as per the timelines set out in the
Weed Management Strategy prepared by LMRS for the site
in July 2006.
To ensure the weeds are not spread from the site, no plant
material or soil containing declared weed seed is to be
removed from the site. All machinery on the site should
undertake appropriate hygiene measures prior to leaving the
site as per the Tasmanian Washdown Guidelines for Weed
and Disease Control produced by the Department of Primary
Industries and Water.
41. Design of the proposed road through the Melaleuca squarrosa
swamp forest must include documentation to the satisfaction
of the Manager Planning that details how interference to
natural flow regimes and water quality will be minimised
both in the swamp forest and downstream wetland
community, prior to the lodgement of the Final Plans for
Sealing and be generally in accordance with the evidence at
the hearing of Mr Thompson.
File No: 294/06S Page 12 J 176 - 2009
42. To ensure damage to the swamp forest and turbidity and
sedimentation of waterways are minimised, the road should
be constructed in dry conditions (preferably summer-spring)
to the satisfaction of the Manager Planning.
43. Vegetation removal must be limited to the area of the
proposed road reserve and trees must be felled parallel to the
road and not into the forest.
The dumping of fill or other material into the swamp forest
must be restricted to the road reserve.
44. As a potential foraging source for the nationally endangered
swift parrot, blue gum (Eucalyptus globulus) trees must be
retained outside building envelopes and roads.
45. The Council will not seal any final plan of subdivision unless
and until all conditions relevant to that plan have been
Dated this 7th day of September 2009
S J Cooper
File No: 294/06S Page 13 J 176 - 2009