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					RG Atkins obo Catta Pty Ltd v Brighton Council [2007] TASRMPAT 5 (10 January 2007)
File No: 24/06 S, 36/06 S & 82/06 S, J 5/2007 P1674 East Derwent Highway Old beach - S59 Land Use Planning and Approvals Act 1993
BETWEEN RG Atkins obo Catta Pty Ltd AND Brighton Council Respondent Appellant

These were appeals against the grant of a permit subject to conditions or restrictions for a subdivision of 30 lots in the residential zone at P1674 East Derwent Highway Old beach and an appeal pursuant to Section 59 of the Land Use Planning and Approvals Act 1993 (the „Land Use Act‟) by Catta Pty Ltd as a consequence of a failure on the part of the Brighton Council (the „Council‟) to determine an application for subdivision permission within the time required by the Act. The appeal was heard at Hobart on the 1st December 2006. SB McElwaine of Counsel appeared on behalf of the Appellant. Ms M Todd of Counsel appeared on behalf of Respondent.

DECISION
Introduction 1. This was an appeal pursuant to Section 59 of the Land Use Planning and Approvals Act 1993 (the „Land Use Act‟) by Catta Pty Ltd as a consequence of a failure on the part of the Brighton Council (the „Council‟) to determine an application for subdivision permission within the time required by the Act. Only one issue falls for determination and that is whether any, and if so what, condition should attach to the permit in relation to the construction of the remainder of Fouche Avenue. All other issues have been resolved to satisfaction of the parties and a Memorandum of Agreement in relation to the terms of the permit was handed to the Tribunal at the hearing. The Tribunal is satisfied that the conditions sought are appropriate and will make orders in terms of those conditions as well as determining what order, if any, is to be made in relation to the remainder of Fouche Avenue. The Council contends that a condition should be attached to the permit in the following terms: “(46) Prior to the sealing of the final plan of survey for the first stage of the subdivision, the owner and the Council must

2.

3.

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enter into an Agreement pursuant to Part 5 of the Land Use Planning and Approvals Act 1993 in respect of the land. The agreement is to provide that the owner covenants and agrees with the Brighton Council – (a) To reimburse the Council for the cost of constructing the remainder of Fouche Avenue in the event that either a roundabout is constructed at the intersection of the East Derwent Highway, Clives Avenue and Fouche Avenue or the intersection of the East Derwent Highway and Jetty Road is closed to traffic or traffic access or egress at the intersection is otherwise restricted, prior to the completion of the Fouche Avenue connection as part of the further subdivision of the balance of the land; and That the cost to be reimbursed to the Council shall be the actual cost of carrying out the work to the same standard as the balance of works required for the subdivision by contract using the most favourable tender, without any provision for inflation; and To repay the cost to the Council prior to the sealing of the final stage of subdivision of the balance of the land; and To advise any successors in title of the existence of the agreement and its terms and conditions.”

(b)

(c)

(d)

5.

The proponent opposes the making of any order at all in relation to the remainder of Fouche Avenue.

The evidence 6. The evidence was of short compass. Mr Heath McPherson gave evidence on behalf of the Council. Mr McPherson is the municipal engineer of the Council. In summary his evidence and the evidence of the expert traffic engineer called on behalf of the proponent, Mr Eaton, was the same. It might be convenient to summarise that evidence as follows:  As things currently stand there is no need, from the traffic engineering point of view, to construct the remainder of Fouche Avenue; If and when a roundabout is constructed on the East Derwent Highway, at its intersection with Fouche Avenue, it will be necessary to construct the remainder of Fouche Avenue; and Were the remainder of Fouche Avenue to be constructed now, before the proposed roundabout was constructed it would create a potentially

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

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dangerous situation from a traffic safety point of view. 7. It is common ground that the roundabout, if it is to be constructed at all, will not be constructed before 2008. It is also common ground that presently there is no application before the Council for approval of any further subdivision within the area encompassing the remainder of Fouche Avenue.

8.

The issue 9. The issue for determination then is whether there should be a permit condition made in relation to the remainder of Fouche Avenue. The test in the Tribunal‟s view to be applied is that to be found in Pyx Granite Co Ltd v. Minister for Housing and Local Government [1958] 1QB 554.) Namely, whether it is necessary and reasonable in all the circumstances of the case to impose the condition sought. The Tribunal has concluded that it is neither necessary nor reasonable in the circumstances of this case to impose a permit condition of the type contended for by the Council. There are a number of reasons for reaching this conclusion. They are:   The subdivision itself may never be the subject of an application; If there is a subdivision to take place then it would be necessary, as part of that subdivision, to make permit conditions in relation to the remainder of Fouche Avenue; Unless and until that occurs such an order is neither desirable nor appropriate; The condition sought is not necessary for the subdivision that is proposed. Indeed the evidence persuades the Tribunal, and both experts agreed about this, that there is good reason not to require an extension of Fouche Avenue at this stage; and The Council contends that that which is proposed is contingent upon various things occurring. In the Tribunal‟s view those conditions precedent should occur before any orders or conditions are made with respect to them.

10.

 



11.

In the circumstances the Tribunal is not satisfied it is appropriate to make the condition sought. Accordingly the submission of the Council in this regard is rejected. Otherwise the Tribunal is satisfied that an order should be made directing the issue of a permit in the following terms: “General

12.

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1.

The subdivision layout or development shown on the application and the endorsed plans must not be altered without the written consent of the Brighton Council. The subdivision must proceed in the order of stages shown on the endorsed plan of survey, unless otherwise agreed in writing by the Brighton Council. Vehicle access to lots 30, 38, 43 and 65 on the plan of survey must be from the proposed cul-de-sacs only. Vehicle access to or from Fouche Avenue, either now or in the future, will not be permitted.

2.

3.

Transfer of reserves 4. All carriageways must be shown as „Road‟ or „Footway‟ on the final plan of survey and transferred to the Brighton Council by Memorandum of Transfer submitted with the final plan of survey for each stage.

Easements 5. Easements must be created over all drains, pipelines, wayleaves and service in accordance with the requirements of the Council‟s Municipal Engineer. The cost of locating and creating the easements shall be at the subdivider‟s full cost.

Covenants 6. Covenants or other similar restrictive controls that conflict with any provisions or seek to prohibit any use provided within the Brighton Planning Scheme 2000 must not be included or otherwise imposed on the titles to the lots created by this permit, either by transfer, inclusion of such covenants in a Schedule of Easements or registration of any instrument creating such covenants with the Recorder of Titles, unless such covenants or controls are expressly authorized by the terms of this permit or the consent in writing of the Council‟s Manager Environment and Development Services. Building envelopes and covenants restricting the construction or erection of any buildings on land with a finished surface level below 1.67 metres AHD must be created to the satisfaction of the Council‟s Manager Environment and development Services on lots 49, 50, 53, 54 and 56 on the plan of survey. Such building envelopes are to be defined by dimensions and bearing on the final plan of survey. A covenant in gross (or restrictive covenant) prohibiting vehicle access to or from Fouche Avenue must be created to the satisfaction of the Council‟s Manager Environment

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and Development Services on the title to lots 30, 38, 43 and 65 on the plan of survey. Agreements 9. Agreements made pursuant to Part 5 of the Land Use Planning and Approvals Act 1993 must be prepared by the applicant on a blank instrument form to the satisfaction of the Council and registered with the Recorder of Titles. The subdivider must meet all costs associated with the preparation and registration of the Part 5 agreement in accordance with Section 78 of the Land Use Planning and Approvals Act 1993.

Landscaping 10. The road reserve must be landscaped by trees or plants in accordance with a landscape plan prepared by a landscape architect or other person approved by the Council, and submitted to the Council for endorsement with the engineering drawings. The landscape plan must show the areas to be landscaped, the form of landscaping, the species of plants and estimates of the cost of the works. Planting shall be equivalent to a minimum of 1 tree per lot or 20 meters frontage, whichever is the greater, using advanced plants that suit the character of the locality. No plants listed as noxious weeds within Tasmania, or displaying invasive characteristics shall be used in the landscaping of the road.

Weed management 11. Prior to the carrying out of any works approved or required by this approval, the subdivider must provide a weed management plan detailing measures to be adopted to limit the spread of weeds listed in the Weed Management Act 1999 through imported soil or land disturbance by appropriate water management and machinery and vehicular hygiene to the satisfaction of the Council‟s Manager Environment and Development Services and of the Regional Weed Management Officer, Department of Primary Industries and Water.

Soil and Water Management 12. A soil and water management plan (SWMP) detailing measures to control stormwater runoff from the land so that runoff does not cause erosion and sedimentation or discolouration of any surface water outside the boundaries of the land during construction must be prepared in accordance with HMCA: Guidelines for Soil and Water management, HMCA, Hobart, 1999, the State Policy for Water Quality Management 1997 and the satisfaction of the Council‟s Manager Environment and Development

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Services before development of the land commences (refer to advice below). 13. Temporary run-off, erosion and sediment controls must be installed in accordance with the recommendations of the approved SWMP and must be maintained at full operational capacity to the satisfaction of the Council‟s Manager Environment and Development Services until the land is effectively rehabilitated and stabilized after completion of the development. The topsoil on any areas required to be disturbed must be stripped and stockpiled in an approved location shown on the detailed soil and water management plan for reuse in the rehabilitation of the site. Topsoil must not be removed from the site until the completion of all works unless approved otherwise by the Council‟s Manager Environment and Development Services. All disturbed surfaces on the land, except those set aside for roadways, footways and driveways, must be covered with top soil and re-vegetated and stabilized, where appropriate, as soon as possible to prevent erosion and siltation to the satisfaction of the Council‟s Municipal Engineer. Any Crown Reserve disturbed during construction activities must be rehabilitated to the satisfaction of the Council‟s Manager Environment and Development Services. The stormwater system must be constructed to incorporate gross pollutant traps designed to ensure that solids greater than 5mm nominal size are not discharged on Crown land. The stormwater system must be designed to provide sediment retention prior to discharge on Crown Land. Design drawings for the stormwater system, including methods to comply with the above conditions, must be approved by Crown Land Services by referral to the Environment Division of the Department of Primary Industries and Water before development of the land commences.

14.

15.

16.

17.

18.

19.

Construction amenity 20. The delivery of materials or the use of machinery is only permitted between the following hours unless otherwise approved in writing by the Council‟s Manager Environment and Development Services –  Monday to Friday 7.00 am to 6.00 pm

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  21.

Saturday

8.00 am to 6.00 pm

Sunday and gazetted public holidays10.00 am to 6.00 pm

Any accumulation of vegetation, building debris or other unwanted material must be disposed of by removal from the site in an approved manner. No burning of such materials on site will be permitted unless approved in writing by the Council‟s Manager Environment and Development Services. Public roadways or footpaths must not be used for the storage of any construction materials or wastes, for the loading/unloading of any vehicle or equipment; or for the carrying out of any work, process or tasks associated with the project during the construction period.

22.

Survey pegs 23. Survey pegs to be stamped with lot numbers and marked for ease of identification. Prior to the works of each stage being taken over by the Council evidence must be provided from a registered surveyor that the subdivision has been re-pegged following completion of substantial subdivision construction work and all survey pegs stamped with lot numbers. The cost of the re-peg survey must be included in the value of any security.

24.

Final plan 25. A final plan of survey and schedule of easements as necessary, together with two (2) copies, must be submitted to the Council for sealing for each stage. The final plan of survey must be substantially the same as the endorsed plan of subdivision and must be prepared in accordance with the requirements of the Recorder of Titles. A fee of $100.00, or as otherwise determined in accordance with the Council‟s adopted fee schedule, must be paid to the Council for the sealing of the final plan of survey for each stage. The subdivider must pay any Titles Office lodgment fees direct to the Recorder of Titles. Prior to the Council sealing the final plan of survey for each stage, security for an amount clearly in excess of the value of all outstanding works and maintenance required by this permit must be lodged with the Brighton Council. The security must be in accordance with Section 86(3) of the Local Government (Building and Miscellaneous Provisions) Act 1993. The amount of the security shall be determined by the Council‟s Municipal Engineer in

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accordance with Council Policy 6.3 following approval of any engineering design drawings and shall not be less than $5,000. 29. All conditions of this permit, including either the completion of all works and maintenance or payment of security in accordance with this permit, must be satisfied before the Council seals the final plan of survey for each stage. It is the subdivider‟s responsibility to notify the Council in writing that the conditions of the permit have been satisfied and to arrange any required inspections.

Infrastructure headworks 30. The subdivider must pay an infrastructure headworks charge to the Council of $50,000, as detailed below$14,250.00 for water infrastructure for Stage 1; $17,400.00 for sewer infrastructure for Stage 1; $ 8,250.00 for water infrastructure for Stage 2; $10,100.00 for sewer infrastructure for Stage 2. The infrastructure headworks contribution must be paid prior to the sealing of the final plan of survey of each stage and shall be indexed annually to the Hobart CPI, rounded to the nearest $5. Telecommunications electrical and gas reticulation 31. Electrical reticulation for underground power and street lighting, telecommunication reticulation and conduits for future gas reticulation must be installed underground in accordance with the requirements of Aurora Energy Pty. Ltd., Telstra and the gas authority. Prior to the work being carried out a design drawing of the electrical reticulation and street lighting, telecommunications reticulation and gas conduits in accordance with the appropriate authority‟s requirements and relevant Australian Standards must be submitted to, and endorsed by, the Council‟s Municipal Engineer.

Municipal services 32. The subdivider must pay the cost of any alterations and/or reinstatement to existing services, Council infrastructure or private property incurred as a result of the proposed subdivision works. Any work required is to be specified or undertaken by the authority concerned. All services must be sized and located to service the ultimate potential development of the site to the satisfaction of the Council‟s Municipal Engineer.

33.

Water

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34.

Separate DN20 metered water connections must be supplied to each lot in accordance with standard drawings prepared by the IPWE Aust. (Tasmania Division) and to the requirements of the Council‟s Municipal Engineer. Water reticulation pipes are to be coloured blue, or have a blue stripe, and Series 2 dimensions are to be maintained in 100mm and larger pipes. Minimum Class is 12 in PVC and 12.5 in PE. Fire hydrants and location markers are to be provided in accordance with the Fire Hydrant Guidelines prepared by the IPWE Aust. (Tasmania Division), the appropriate Australian Standards and the requirements of the Council‟s Municipal Engineer. The final plan of survey must be endorsed to the satisfaction of the Council‟s Manager Environment and Development Services where fire protection cannot be provided form the Council‟s reticulated water main to the entirety of each lot. The lot layout must be designed to locate the existing water main running east west through the development within the road reservation in accordance with the IPWE Aust. (Tasmania Division) standard drawing SD-1002. Alternatively the subdivider may re-lay the existing water main at its full cost in accordance with the requirements of the Council‟s Municipal Engineer.

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Sewer 39. A separate sewer connection and inspection shaft must be supplied to each lot in accordance with standard drawings prepared by the IPWE Aust. (Tasmania Division) and to the requirements of the Council‟s Municipal Engineer. Common sewers must be extended to the lot proper. A sub-minimum lot must be created at the rear of lot 40 on the plan of survey to create a 5 metre by 5 metre splay on the adjoining sewer pump station access, to the satisfaction of the Council‟s Municipal Engineer. Approval for the sub-minimum lot is granted only for the purpose of allowing the lot to be joined to form a single parcel in accordance with Section 111(1) of the Local Government (Building and Miscellaneous Provisions) Act 1993. The Council will meet all reasonable survey and legal costs of complying with this condition. The final plan of survey must show the sub-minimum lot joined to Certificate of Title Volume 107918 Folio 34, which must be transferred to the Brighton Council by Memorandum of Transfer submitted with the final plan of survey.

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Drainage 42. A separate stormwater connection and inspection shaft must be supplied to each lot in accordance with standard drawings prepared by the IPWE Aust. (Tasmania Division) and to the requirements of the Council‟s Municipal Engineer. Stormwater from the development is to be contained to a single point of discharge located between lots 54 and 56 to the satisfaction of the Council‟s Municipal Engineer.

43.

Roadworks 44. The corners of each road intersection must be splayed or rounded by chords of a circle with a radius of 6 metres in accordance with Sections 85(d)(viii) and 108 of the Local Government (Building and Miscellaneous Provisions) Act 1993 and the requirements of the Council‟s Municipal Engineer. Roadworks and drainage must be constructed in accordance with the standard drawings prepared by the IPWE Aust. (Tasmania Division) and to the requirements of the Council‟s Municipal Engineer. Roadworks must include – (a) (b) Sealed access to each lot; Fouche Avenue   Minimum road reserve of 18 metres; Fully sealed, paved and drained carriageway with 9m seal width to match existing and concrete barrier kerb and channel both sides; Concrete footpaths 1.5 metres wide measured from the face of the kerb on both sides; Underground drains.

45.



 (c)

Proposed cul-de-sacs   Minimum road reserve of 15 metres; Southern cul-de-sac to be fully sealed paved and drained carriageway with 6m seal width and concrete rollover kerb and channel both sides;

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

North-east cul-de-sac to be fully sealed, paved and drained carriageway with 6m seal width and concrete rollover kerb and channel both sides; Concrete footpaths 1.5 metres wide located 0.1 metres from the property boundary on one side; Turning Circle at the end of the cul-de-sac with a minimum road reservation of 25 metres diameter and a carriageway with a minimum diameter of 17 metres. A „T‟ or „Y‟ shaped turning area with arms of 8 metres minimum length and 4 metres carriageway may be approved by the Council‟s Municipal Engineer as an alternative; Underground drains.





 46.

A minimum 2-metre wide reinforced concrete footpath must be constructed in the walkway between lots 55 and 56 from the proposed cul-de-sac to the reserve in accordance with standard drawings and specifications prepared by the IPWE Aust. (Tasmania Division) and the requirements of the Council‟s Municipal Engineer. Kerb ramps must be provided to accommodate the needs of people with disabilities in accordance with standard drawings prepared by the IPWE Aust. (Tasmania Division) and to the requirements of the Council‟s Municipal Engineer. A concrete access must be provided from the carriageway of the road to each lot on the plan in accordance with the construction and sight distance standards shown on standard drawings SD 1003 and SD 1030 prepared by the IPWE Aust. (Tasmania Division) and the requirements of the Council‟s Municipal Engineer. All driveway carriageways providing shared access to more than one lot must be constructed in accordance with Section 107 of the Local Government (Building and Miscellaneous Provisions) Act 1993, standard drawings prepared by the IPWE Aust. (Tasmania Division) and to the requirements of the Council‟s Municipal Engineer. Shared access must include –   Maximum grade of 1 in 5 (20%) onto the lot‟ Minimum trafficable width of 3 metres for up to 50 metres length, or with minimum 5.5 metres wide by 7.5 metres long passing bays at the

47.

48.

49.

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boundary and every 50 metres along the access otherwise;    50. Minimum compacted pavement depth of 200mm. Surface consisting of a 10mm nominal size two-coat bituminous seal; and Stormwater drainage as required.

A street sign and standard must be provided and installed at the intersection of the proposed roads and Fouche Avenue at the subdivider‟s full cost in accordance with the Australian Standard and the requirements of the Council‟s Municipal Engineer.

Engineering drawings 51. All new public infrastructure and subdivision work must be designed and constructed to the satisfaction of the Council‟s Municipal Engineer and in accordance with the following –            Local Government (Building and Miscellaneous Provisions) Act 1993; Local Government (Highways) Act 1982; Sewers & Drains Act 1954 Waterworks Clauses Act 1952; Australian Standards; Building and Plumbing Regulations; Relevant By-laws and Council Policy; WSAA 02-2002 Sewerage Code of Australia; WSAA 03-2002 Water Supply Code of Australia Current IPWEA (Tasmanian Division) and Brighton Council Municipal Standard Drawings: Current IPWEA and Brighton Council Municipal Standard Specifications.

52.

Prior to the development of the land commencing, engineering design drawings must be prepared by a qualified and experienced civil engineer, or other person approved by the Council‟s Municipal Engineer, in accordance with Australian Standards AS1100.101 Technical Drawing – General principles, Standards

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Australia, Homebush, 1992 and AS1100.401 Technical Drawing – Engineering survey and engineering survey design drawings, Standards Australia, Homebush, 1984. 53. Two sets of preliminary engineering design drawings are to be initially submitted to the Council for inspection and comment. Following this, four (4) sets of final engineering plans are to be submitted for final approval by the Council. The approved engineering design drawings shall form part of this permit when approved. The Council will keep two (2) sets of approved drawings and two (2) sets will be returned to the subdivider‟s engineer. One (1) set of the approved engineering design drawings must be kept on site at all times during construction. Approved engineering design drawings will remain valid for a period of 2 years from the date of approval of the engineering drawings.

54.

Traffic management 55. A Traffic Management Plan prepared by a suitably qualified person in accordance with Section G2.6 of DIER: Standard Specification for Roadworks, Department of Infrastructure, Energy and Resources, Hobart, August 2003 and the referenced document DIER: Traffic Control at Work Sites Code of Practice, Department of Infrastructure, Energy and Resources, Hobart, June 2004, or the current replacements must be submitted to the Council‟s Municipal Engineer prior to the commencement of any work within a public road reserve. All traffic control is required to be performed and certified by accredited traffic control personnel and all works within the road reserve to comply with all relevant occupational health and safety regulations.

Construction 56. The subdivider must provide not less than 48 hours written notice to the Council‟s Municipal Engineer before commencing construction works on site or within a Council roadway. The written notice must be accompanied by evidence of payment of the Building and Construction Industry Training Levy, where the cost of the works exceeds $12,000. The subdivider must provide not less than 48 hours written notice to the Council‟s Municipal Engineer before reaching any stage of works requiring inspection by the Council unless otherwise agreed by the Council‟s Manager Engineering Services. The subdivider must pay a fee to the Brighton Council for the supervision of any works to which Section 10 of the Local Government (Highways) Act 1982 applies unless the

57.

58.

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work is carried out under the direct supervision of an approved practicing professional civil engineer engaged by the owner and approved by the Council‟s Municipal Engineer. The fee shall be three per cent (3%) of the cost of the subdivision works. Defects Liability Period 59. The subdivision must be placed onto a 6-month defects liability period in accordance with the Council‟s Specification and Policy following the works reaching the stage of practical completion in accordance with the approved engineering plans and permit conditions. Prior to the works being placed on the maintenance period „as constructed‟ drawings must be provided to the satisfaction of the Council‟s Municipal Engineer of all engineering works provided as part of this approval. These „as constructed‟ drawings must be prepared by a qualified and experienced civil engineer or other person approved by the Municipal Engineer and provided in both digital and „hard copy‟ format.

60.

THAT the permit be subject to the following advice: A. This permit does not imply that any approval required under any other legislation or by-law has been granted. The issue of this permit does not ensure compliance with the provisions of the Threatened Species Protection Act 1995 or the Environmental Protection and Biodiversity Protection Act 1999 (Commonwealth). The applicant may be liable to complaints in relation to any non-compliance with these Acts and may be required to apply to the Threatened Species Unit of the Department of Primary Industries and Water or the appropriate Commonwealth Minister for a permit. The issue of this permit does not ensure compliance with the provisions of the Aboriginal Relics Act 1975. If any Aboriginal sites or relics are discovered on the land, stop work and immediately contact the Tasmanian Aboriginal Land Council and Aboriginal Heritage Unit of the Department of Tourism, Arts and the Environment. Further work may not be permitted until a permit is issued in accordance with the Aboriginal Relics Act 1975. The subdivider is advised that a fee for supervision of any works to which Section 10 of the Local Government (Highways) Act 1982 applies must be paid to the Brighton Council unless carried out under the direct supervision of an approved practicing professional civil engineer engaged by the subdivider and approved by the Council‟s Municipal Engineer. The fee must equal not less than three percent (3%) of the cost of the works.

B.

C.

D.

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E.

The subdivider is advised that a fee of 1% of the value of the approved engineering works, or a minimum of $200.00, must be paid to the Council in accordance with the Council‟s fee schedule. The traffic management Code of Practice can be found at http://www.transport.tas.gov.au/safety/traffic_control_cod e/index.html. Typical details are shown in the relevant Australian Standard field guide. The SWMP must show the following: (a) Allotment boundaries, north-point, contours, layout of roads, driveways, building envelopes and reticulated services (including power and telephone and any on-site drainage or water supply), impervious surfaces and types of all existing natural vegetation; Critical natural areas such as drainage lines, recharge area, wetlands, and unstable land; Estimated dates of the start and completion of the works; Timing of the site rehabilitation or landscape program; Details of land clearing and earthworks or trenching and location of soil stockpiles associated with roads, driveways, building sites, reticulated services and fire hazard protection. Arrangements to be made for surface and subsurface drainage and vegetation management in order to prevent sheet and tunnel erosion. Temporary erosion and sedimentation controls to be used on the site. Recommendations for the treatment and disposal of wastewater in accordance with Standards Australia (2000), AS/NZS 1547: On-site Wastewater Management, Standards Australia, Sydney. Appropriate temporary control measures include, but are not limited to, the following:   Minimise site disturbance and vegetation removal; Diversion of up-slope run-off around cleared and/or disturbed areas, or areas to

F.

G.

(b)

(c)

(d)

(e)

(f)

(g)

(h)

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be cleared and/or disturbed, provided that such diverted water will not cause erosion and is directed to a legal discharge point (eg. Temporarily connected to the Council‟s stormwater system, a watercourse or road drain);  Sediment retention traps (eg. Sediment fences, straw bales, grass turf filter strips, etc.) at the down slope perimeter of the disturbed area to prevent unwanted sediment and other debris escaping from the land; Sediment retention traps (eg. Sediment fences, straw bales, etc.) around the inlets to the stormwater system to prevent unwanted sediment and other debris blocking the drains; Stormwater pits and inlets installed and connected to the approved stormwater system before the roadworks are commenced; and Rehabilitation of all disturbed areas as soon as possible.







H.

If you notify the Council that you intend to commence the use or development before the date specified above you forfeit your right of appeal in relation to this permit. This permit shall lapse at the expiration of two (2) years from the date of the commencement of planning approval if the development for which the approval was given has not been substantially commenced. Where a planning approval for a development has lapsed, an application for renewal of a planning approval for that development shall be treated as a new application.

I.

THAT the Council refer the landscaping of the existing reserves of Fouche Avenue and Clives Avenue for inclusion in a future works program. Costs 13. Since this is a section 59 appeal the provisions in relation to costs of such appeals provided for in that section apply. There will be an order that the Council will pay the proponents costs of and incidental to the appeal to be agreed or in the absence of agreement to be assessed by the Registrar of the Tribunal. The scale to be used for the assessment of the costs those costs will be 90 per cent of the higher scale for the time being provided for in the Supreme Court Rules 2000. Finally Section 59(5)(a) requires the Appeal Tribunal to direct the planning authority to pay an amount determined by the Tribunal as the costs of the appeal.

14.

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15.

Pursuant to this section the Tribunal directs the Brighton Council to pay to the Appeal Tribunal the sum of $2,290.94 being the amount determined by the Tribunal as the costs of the appeal. The Tribunal directs such sum is to be paid to the Tribunal within seven day of the date of this order.

Dated this 10 January 2007

B McNeill Member

SJ Cooper Chairman

JJ Caulfield Member

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