Attachment 1 - Letter from Thomson Geer - Condition 63 · 132007.12.8

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            (b) Provide for the maintenance of the road reserve in those parts affected by the private
                services,

            (c) State that the applicant is responsible for obtaining approval for the design and
                construction of the various services from the relevant authority,

            (d) State that the design and construction of the services shall be wholly at the applicant's
                expense and shall not entail a financial encumbrance on future purchasers of the
                proposed lot, and

            (e) Be to the satisfaction of the Department of Natural Resources and Water (DNR&W). If
                DNR&W does not consent to the private services crossing their land the applicant shall
                find an alternative means of providing services to the balance of Lot 4 prior to the use
                commencing.

3.2   As the heading suggests, this condition was inserted as part of the Negotiated Decision Notice
      process that resulted in the first version of the development approval, granted on 7 March 2008.

3.3   The current change application is directly relevant to this Condition 63, as the new built form is
      proposed for that part of Lot 4 that is separated from the existing development by the road
      reserve area. No substantive built form has been constructed on that separated part of Lot 4 to
      date, which has meant that compliance with this condition has not yet been necessary.

4     Discussion

4.1   In substance, Condition 63 requires the installation (and ongoing maintenance) of appropriate
      infrastructure (e.g. power, water) to service the part of Lot 4 that is separate from the existing built
      form.

4.2   We do not consider that an infrastructure agreement is necessary or desirable to achieve that
      substantive purpose. The relevant area that the services need to traverse is a dedicated road
      reserve. Whilst it is relatively narrow (approximately 5m in width) and is used as a public footpath,
      legally it is no different to any other roadway.

4.3   There is no necessity for the outcomes sought in Condition 63 to be imposed by way of
      infrastructure agreement. We say this because:

      (a)      It is lawful for the Council to impose conditions on a developer/applicant requiring works
               in the existing public roadway. Councils regularly impose conditions on approvals
               requiring road upgrades (additional lanes, kerb and channel etc) and/or installation of
               services under roadways (e.g. bringing a water/sewer main under a road to service a
               development). Moreover, those conditions often require that the works be undertaken at
               the developer/applicant's cost; and

      (b)      It is lawful for the Council to impose conditions requiring the ongoing maintenance of
               those services. Again, Councils regularly impose conditions that require aspects of a
               development to be maintained on an ongoing basis, whilst the approved use is operating.

4.4   Furthermore, it is in fact less desirable for the parties to enter into an infrastructure agreement (as
      contemplated by the condition), particularly from the point of view of the Council, as:

      (a)      There are costs associated with drafting, reviewing and then implementing an
               infrastructure agreement (for both parties) that can be readily avoided by utilising a
               condition of approval instead;

      (b)      Condition 63, in its current form, already requires the developer/applicant to seek further
               approvals for the works (likely to be operational works approvals). Those further
               approvals represent an opportunity for the Council to appropriately condition any detailed




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