111 Investments Pty Limited v Corowa Shire Council - [2010] NSWLEC 1165

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: 111 Investments Pty Limited v Corowa Shire Council [2010] NSWLEC 1165

PARTIES:
APPLICANT
111 Investments Pty Limited
RESPONDENT
Corowa Shire Council

FILE NUMBER(S): 10936 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- establishment of a “primitive camping ground” - inconsistency with the character of the surrounding area - detrimental impact on the amenity of the area - the need to connect to the sewerage system - bushfire risk.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Corowa Local Environmental Plan 1989
Murray Region Regional Environmental Plan No 2 - Riverine Land
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005

DATES OF HEARING: 29,30 March 2010

EX TEMPORE JUDGMENT DATE: 30 March 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan, barrister
SOLICITORS
Kell Moore Lawyers
RESPONDENT
Mr M Astill, solicitor
SOLICITORS
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

30 March 2010

10936 of 2009 111 Investments Pty Limited v Corowa Shire Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application No 2009/14 by Corowa Shire Council (the council) to establish a “primitive camping ground” at 45 Pimpala Crescent, Mulwala (the site). A primitive camping ground has a specific meaning and is addressed later in the judgment.

2 The contentions raised by the council relate to the inconsistency with the character of the surrounding area, the detrimental impact on the amenity of the area, the need to connect to the sewerage system and the bushfire risk.

The site

3 The site is lot 1 in DP 616075 and has a total area of 41.06 hectares. It is irregular in shape with the access handle at the eastern part of the site at Pimpala Crescent. The western part of the site extends to the Murray River and is subject to inundation. The site also contains a number of informal tracks with the main track leading from Pimpala Crescent to the Murray River.

4 The site is largely covered with remnant and regrowth vegetation typical of the area but with some clear areas and some more densely vegetated areas. The surrounding development is dominantly rural/residential in character, with other nearby land uses consisting of a munitions factory and a State forest.

The proposal

5 The proposal seeks approval for 12 camping sites, a 240 sq m storage shed, a toilet and shower block measuring 3 m x 9 m, a 9,000 litre effluent tank (being 3,000 litres for sewage and 6,000 litres for grey water), located below the toilet and shower block, a 2,000 litre tank for fire fighting purposes and a 6,000 litre tank for rainwater.

6 The proposal was amended during the hearing to provide the size and location of each camping site and a designated area of 22 ha for the primitive camping ground. A caravan storage area is located on the site adjoining the storage shed and toilet and shower block but not within the designated area of the primitive camping ground.

7 The primitive camping ground is to be used by the 12 shareholders of the applicant company who own the site. It is to be used primarily, but not exclusively, on public holidays and holidays such as Christmas and Easter.

Relevant planning controls

8 The site is within Zone 7(a)(Environment Protection Zone) under Corowa Local Environmental Plan1989 (LEP 1989). The use is categorised as a “tourist facility” and is a use that is permissible with consent in this zone. Clause 9(3) provides that the consent authority shall not grant consent unless the proposed use is consistent with the zone objectives. The council raised no specific contentions in relation to any inconsistency with zone objectives, although objective (e) relates to water quality, which was raised as an issue by the council.

9 Clause 10 provides general considerations for development. This clause provides that the consent authority shall not consent to a development application unless an assessment has been made of a number of matters. The relevant matters are:

(e) the practicality, adequacy and cost of providing, extending and maintaining public amenities for and services to the development;

(g) development on adjoining land or other land in the locality; and

(h) the means of access and availability of parking and whether these are adequate for the development, including the likely traffic effects of the development.

10 Clause 33 provides requirements for development along the river, although the council raised no issues in relation to this clause.

11 The site is subject to Murray Region Regional Environmental Plan No 2 - Riverine Land (REP 2). The aim of the plan in cl 2 is “to conserve and enhance the Riverine environment of the River Murray for the benefit of all users”. Clause 8(b) provides that the plan applies when a consent authority determines a development application. Clause 9 provides general principles and cl 10 provides specific principles. The relevant principles are Access, Bank Disturbance, Flooding and Water Quality.

12 Clause 13 contains planning controls on specific matters. The relevant matter is 6 Caravan Park/Camping Ground. The matters relevant to this application are permanent facilities, pedestrian access to the Murray River in riverfront locations and buffers to the Murray River.

13 The Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 (Regulation 2005) applies. Regulation 2005 provides opportunities for affordable alternatives in short term and long term accommodation in a range of forms. Subdivision 9 provides requirements for primitive camping grounds. Requirements are provided for density (r 132(1), (2)(a) and (b)), proximity to other camping facilities (r 132 (2)(c) and (d)), the provision of water toilet and refuse disposal (r 132(2)(e)), unoccupied camping facilities to be removed within 24 hours (r 132(2)(f)) and fire fighting facilities (r 132(2)(g)).

14 Importantly, r 132(4) states that the provisions of Subdivision 1 - 8 do not apply to a primitive camping ground. Subdivisions 1 - 8 provide requirements for Land and Site Requirements (sub 1); Setbacks (sub 2) Roads (sub 3), Utility Services (sub 4), Shower and Toilet Facilities (sub 5), Laundry Facilities (sub 6), Management (sub 7), and General Requirements (sub 8).

15 Put simply, the provisions of facilities and infrastructure are far less onerous for primitive camping grounds than other camping grounds or other forms of accommodation under Regulation 2005.

(DCP 21), the Flood Plain Risk Management Study, Corowa, Howlong and Mulwala and the Corowa Flood Plain Development Guidelines (the Flood Guidelines) were relied on by the council.

The evidence

17 Town planners, Mr Warwick Horsfall provided expert evidence for the applicant and Mr Bob Parr provided expert evidence for the council. A number of local residents provided evidence on site and opposed the proposed development. Their concerns related to:

the access provisions to the site,
the increase in traffic movements,
increased dust,
loss of privacy,
headlight glare,
litter,
increased service vehicles,
loss of security, and
noise, particularly near the entrance to the site and late at night.

Character of the area

18 On the question of inconsistency of the proposed use with the character of the area, I am satisfied that as a tourist facility is a permissible use in the zone, there can be no reasonable argument that there is a fundamental inconsistency with the character of the area. The test of whether a use is inconsistent with the character of an area rests predominantly on the particular characteristics of that use. This is addressed later in the judgment but was not found to be a reason to refuse the application.

Amenity impacts

Noise, car parking, litter, dust and headlight glare

19 Mr Horsfall and Mr Parr addressed the potential amenity impacts on nearby properties in their joint statement and also in their oral evidence.

20 In response, the applicant proposes the following measures:

the sealing of the access driveway for a length of 250 m from Pimpala Crescent to avoid dust,
the placement of a litter bin at the end of the sealed driveway,
the gate at the entrance to be kept open when the site is being used to avoid the need to stop and open the gate,
any deliveries and pick up or dropping off of persons at the site is to occur at the end of the sealed driveway,
the area near the entry is to be quarantined from parking cars by a physical barrier,
an emergency contact phone number will be provided to residents,
restrictions on the areas where recreational vehicles can be used; and
restrictions on the times for the use of recreational vehicles on the site.

21 These requirements are to be imposed either as conditions of consent or through a plan of management referred to in any approval.

22 There was agreement between Mr Horsfall and Mr Parr that compliance with these measures will provide an acceptable level of amenity for the local residents.

Motor bikes/dust

23 The other activity on the site that impacted on amenity was the use of motor bikes and the likely dust impacts. Mr Parr was of the view that this was a problem for adjoining rural residential properties; however, Mr Horsfall did not accept that it was such a significant problem that it would warrant the refusal of the application.

24 On this matter, I agree with Mr Horsfall. While there might be times when dust from motor bikes may occur, it is not so likely to be a regular problem given the size of the site, the distance to existing dwellings, the frequency of use and the restrictions placed on times and location of recreational vehicles. I note that the applicant has agreed to limit the use of recreational vehicles on the site to 9.00 am to 7.00 pm and restrict use to the main body of the site and not the access handle near Pimpala Crescent. Overall, the effect of dust on adjoining properties would not be a reason to refuse the development application.

25 Pursuant to cl 10(g) and (h) of LEP 1989, and having made an assessment of the likely impacts on adjoining lands and the access and parking arrangements, I am satisfied that there is no basis to refuse the application on these grounds.

Sewage disposal

The evidence

26 Mr Parr argues that the proposed toilet block should be connected to council’s sewer and relies on cl 4(b) of the council’s Flood Guidelines that states:

b) A development that produces sewerage wastes shall not be developed on flood liable land unless it is connected to council’s sewerage system and arrangements suitable to council have been made for the disposal of waste in a manner that is not likely to cause pollution.

27 Mr Parr also relies on similar provisions in DCP 21 to conclude that the toilet block should be connected to the council’s sewerage system.

28 Mr Horsfall states that the sewage is to be pumped out of the site by a contractor and is an acceptable process in the circumstances. He further notes that the tanks are to be located above the 1:100 year flood level. Mr Horsfall states that DCP 21 was adopted on 21 October 2009 however the “connection to sewer” clause for development on flood prone land was only addendum that was made at this meeting. Mr Horsfall notes that DCP 21 was not adopted by the council, or had come into effect when the subject application was determined in September 2009. In his opinion, the relevant document at the determination of the development application was the Flood Guidelines, where the 1:100 year flood level was determined at 124.6 metres AHD, This level is based on the 1917 flood level and is at or below the level of the toilet block storage shed.

Findings

29 The most recent flood study, the Flood Plain Risk Management Study, Corowa, Howlong and Mulwala, prepared for the council by URS on 23 March 2009, identifies the 1:100 year flood level at Mulwala at 124.87 AHD. The plans provided with the development application indicate that the proposed storage shed is to be constructed with a floor level of 124.9 AHD. The toilet block will have a floor level of 125.6 AHD, and the effluent and waste storage tanks are to have a floor level of 124.9 AHD, but with an enclosing bund wall to a height of 125.5 AHD. The area enclosed by the bund wall will have a capacity of 110% of the storage tanks.

30 In considering the different approaches of Mr Parr and Mr Horsfall, I am satisfied that the applicant’s proposal for disposal of sewage is acceptable. Importantly, there is no evidence to suggest that the system would not function properly. The removal of all sewage by contractor removes all possibility of impact on the river system, except if there is a leak in the tanks, and this is properly addressed through the bunding and storage capacity of the enclosed area. In times of flooding, the location of the tanks above the most recent 1:100 year flood level of 124.87 AHD addresses this concern in an acceptable manner. While Mr Parr relied on the Flood Guidelines and DCP 21, he accepted the proposed pump out system would minimise the risk of polluting the river.

31 The requirement to connect to the sewer, in my view, is unreasonable in the circumstances, given the distance of around 2 kilometres to the council’s sewer and the likely cost, particularly given the relatively minor scale of the proposal. Mr Parr could not provide an estimate of the cost to connect to the sewer, although it would not be difficult to conclude that the cost would likely be high. I am also mindful of cl 10(e), where the practicality and cost of providing services to the development is a relevant consideration. I also note that in the aims of DCP 21, aim (f) seeks to “apply a merit based approach to all development decisions which takes into account social, economic, ecological and flooding considerations”.

32 In balancing all the different factors, I am comfortable in concluding that the proposed sewerage/wastewater systems are appropriate and that the potential to create unacceptable impacts on the Murray River have been minimised through this design. Consequently, there is no inconsistency with zone objective (e).

Bushfire risk

33 In relation to bushfire, the Rural Fire Service has issued general conditions of approval on 13 March 2009. The only issue in dispute is the provision of alternate emergency egress, which is required to be provided in accordance with section 4.1.3.3 of Planning for Bushfire Protection 2006.

34 Mr Parr states that, to satisfy the requirements of the Rural Fire Service, an easement will need to be created over an adjoining property to ensure that emergency egress is available at all times. The applicant proposes to address the issue of emergency egress through a deed with an adjoining owner. This adjoining owner has provided written acceptance of such a proposal affecting his land.

35 The deed will provide for alternate access to be physically constructed and evidence submitted to the council that a legal right has been established. The deed will be a condition of consent, and that any third party be included as a term of the deed. Upon the cessation or termination of the deed, the owner must provide council with a fresh deed establishing an alternate egress or otherwise identify a satisfactory alternate egress route. In the absence of any deed, the site may not be used for a primitive camping ground.

36 Section 4.1.3.3 of Planning for Bushfire 2006 provides requirements for the provision of fire trails. The intent is stated as:

To provide suitable access for fire management purposes and maintenance of APZ’s.

37 This section addresses a number of different scenarios, although nothing directly relating to the proposed development. What can be gleaned from this clause is that there needs to be certainty for the alternate access in terms of access and maintenance. While an easement over adjoining private property will satisfy the intent, equally I agree that the deed arrangement proffered by the applicant will provide the same level of satisfaction and will address the identified intent of the clause in Planning for Bushfire Protection 2006.

38 Based on the above findings, I am satisfied that there is no inconsistency with any of the objectives in the LEP 1989 or any matter within the REP or council’s development control plans that would warrant the refusal of the development application.

Conditions

39 I have previously dealt with condition 5 that required connection to the sewer and found that the applicant’s alternate approach is appropriate, and similarly, I have adopted the applicant’s condition 12 for the emergency access route.

40 Condition 8 deals with the management plan, and as I understand, Mr Parr and Mr Horsfall have largely agreed on its contents, but require a little more time to finalise the contents. If agreed, condition 8 should refer to compliance with the agreed plan of management, rather than specify the areas that require to be addressed within the plan of management.

41 Condition 9 deals with the construction of the service road. The areas of disagreement relate to the construction of the concrete edge plinth (condition 9(b)(v)), gravel shoulders (condition 9(b)(iv)), splayed access road pavement (condition 9(b)(vii)), a table drain on Pimpala Crescent (condition 9(b)(viii)) and drainage of the access road (condition 9(b)(ix)). The applicant opposed these conditions as they were excessive for the amount of traffic generated by the proposed development. I agree with this submission and the conditions can be deleted.

Orders

42 The orders of the Court are:

___________________

G T Brown

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

111 Investments Pty Ltd v Corowa Shire Council

1. APPROVAL

(b) Subject to the conditions of this approval, the development must be carried out generally in accordance with:

Primitive Camping Ground with ancillary facilities 45 Pimpala Crescent, Mulwala Development Application

(ii) the plan attached to the letter from Habitat Planning to Council dated 31 July 2009, titled Proposed Primitive Camping Ground – 45 Pimpala Crescent, Mulwala Camp Camping Ground Layout Plan;

(iii) the letter from Habitat Planning to Council dated 31 July 2009;

(iv) the site plan titled 111 Investment Pty Ltd Primitive Camping Ground 12 Off Camping Sites Land as per Title, which is included in the Management Plan prepared for 111 Investments Pty Ltd dated June 2009.

For the avoidance of doubt if there is any inconsistency with the content of those documents and the conditions of this approval, the conditions of this approval will prevail.

(b) The camp sites must be situated in the locations designated for that purpose by the site plan titled 111 Investment Pty Ltd Primitive Camping Ground 12 Off Camping Sites Land as per Title, which is included in the Management Plan prepared for 111 Investments Pty Ltd dated June 2009.

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds & Moveable Dwellings) Regulation 2005

(b) Without limiting (a), unoccupied caravans, campervans and tents are not to be allowed to remain on the site for more than 24 hours.

The development must not be commenced until a construction certificate has been issued for all works associated with the construction of the shed, ablution block and roadway.

(b) Any part of the bunding that is located below the 1% flood level must be designed by a structural engineer to withstand the force and impact of flowing floodwaters, including debris and buoyancy forces as appropriate.

(c) A copy of the current contract that indicates an approved dumping point with the effluent removal contractor is to be lodged with Council prior to occupation.

(b) Prior to the issue of a construction certificate a written report of the structural engineer confirming compliance with paragraph (a) must be provided to Council.

All portions of buildings and structures that are below the 1% flood level must be constructed using materials that are flood compatible.

Compliance with the Management Plan dated April 2010 and filed with the Land and Environment Court on 8 April 2010

(b) The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with Corowa Shire Design Manual and include:

(ii) Sealed pavement for the first 250 m to a width of 3 m to consist of a compacted subgrade, 100mm thick DGS 20 subbase course, 100mm DGB20 base course and two coat 10/7mm double double bitumen seal and 150 mm thick DGS 20 gravel shoulders 2 m wide on the outer side of the kerb edge to allow vehicles to pass each other from Pimoala Crescent access point to the throat of the courtbowl.

(iii) A courtbowl at the end of the road suitable for a single unit truck (garbage truck) to turn without reversing. Minimum 12.5 radius, Austroads Standard. The location of the courtbowl is to minimise tree loss.

(iv) Deleted.

(v) Deleted.

(vi) Deleted.

(vii) Deleted.

(viii) Deleted.

(ix) Deleted.

(c) The road must be constructed prior to occupation and maintained in good order at all time at full cost by the applicant and subsequent proprietors.

(b) The property owner must plant in accordance with the approved plan under paragraph (a) and maintain the plants for 5 years.

Environmental Planning and Assessment Act

1979

(a) General Conditions

(i) Contact person / department and contact details

(ii) Objectives of the Fire Management Plan and statement of how the proponent intends to comply with clause 63(2) and 64 of Part 4 Division 1 of the Rural Fires Act 1997

(iii) Schedule and description of works for the construction of asset protection zones and their continued maintenance

(iv) Water supply for fire fighting purposes, its location and use by/compatibility with NSW Rural Fire Service Tankers

(v) Fire fighting capability and preparedness

(vi) Details of access including alternate emergency access/egress

(vii) Location of fire trails and schedule and description of works for their construction and their continued maintenance.

(viii) Details of any proposed boundary fuel breaks or fire breaks

(ix) Any proposed burning to reduce fuel levels

The development must not be occupied until and unless the Fire Management Plan has been approved by the RFS, with or without conditions, and evidence of that approval is submitted to Council along with a copy of the Fire Management Plan as approved. The Fire Management Plan, as approved by the RFS and including any conditions, must be complied with at all times.

Planning for Bush Fire Protection 2006

[Note: The intent of these measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building.]

Water, electricity and gas are to comply with the following requirements of section 4.1.3 of Planning for Bush Fire Protection 2006:

(i) A 20,000 non-combustible water tank must be provided for fire fighting purposes. A metal 65mm Storz fitting and metal ball valve must be installed in the tank for connection to local fire service appliances. Adequate access to within 4 metres of the water supply for a Category 1 heavy bushfire tanker must also be provided.

(ii) An "SWS" marker must be obtained from the local NSW Rural Fire Service and positioned for ease of identification by brigade personnel and other users of the SWS. In this regard:

(B) Markers should be positioned adjacent to the most appropriate access for the static water supply.

(i) The internal access road must be a two-wheel drive, all weather road, have a minimum carriageway width of 8 metres, provide a loop road around the storage shed or incorporate a turning circle with a minimum 12 metre outer radius and have a minimum vertical clearance of 4 metres to any overhanging obstruction, including tree branches.

[Note: The intent of measures for fire trails is to provide suitable access for fire management purposes and maintenance of APZs.

(ii) Fire trails must comply with section 4.1.3(3) of Planning for Bush Fire Protection 2006.

(iii) An alternative emergency egress must be provided. It must be constructed in accordance with section 4.1.3(3) of Planning for Bush Fire Protection 2006 and clearly signposted.

(i) Arrangements for emergency and evacuation are to comply with section 4.2.7 of Planning for Bush Fire Protection 2006.

(ii) A sheet, leaflet or pamphlet must be produced that contains a map showing the camping area, access, emergency egress, fire trails, emergency meeting/refuge area and location of water. It must also contain information on but not limited to general fire safety while camping, information on restrictions during total fire banks, emergency contact numbers and evacuation procedures. A copy must be provided to each occupier of the site on or prior to their occupation.

(b) Prior to occupation, the alternative egress must be physically constructed and evidence to be submitted to Council that a legal right to use the alternative egress has been established by the Deed. It will be a condition of any Deed relating to the provision for alternate access entered into owner of the land and any third party that this condition be included as a term of the Deed. Upon the cessation or termination of the Deed, the owner must provide council with a fresh Deed establishing an alternate egress or otherwise identify a satisfactory alternate egress route. In the absence of any Deed, the site may not be used for a primitive camping ground.

(c) Prior to occupation a letter must be submitted to Council from the RFS certifying that all of the conditions imposed by the RFS and set out as condition ‎11and 12 of this approval have been satisfactorily complied with.

(d) No trees may be removed in order to satisfy the conditions imposed by the RFS and as set out as condition 11 of this approval, unless and until:

(ii) a copy of that consent has been submitted to Council.

(b) Native vegetation (including trees such as River Red Gum, Black Box and River Coobah, shrubs, reeds such as Phragmites and grasses) on or adjacent to the river bank is not to be cleared, modified or otherwise harmed at any time during the construction or at any time subsequently. This does not include the control of noxious or other recognised weeds.

(c) Deleted.

(b) Deleted

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Citations

111 Investments Pty Limited v Corowa Shire Council [2010] NSWLEC 1165

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CITATION:	111 Investments Pty Limited v Corowa Shire Council [2010] NSWLEC 1165
PARTIES:	APPLICANT 111 Investments Pty Limited RESPONDENT Corowa Shire Council
FILE NUMBER(S):	10936 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- establishment of a “primitive camping ground” - inconsistency with the character of the surrounding area - detrimental impact on the amenity of the area - the need to connect to the sewerage system - bushfire risk.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Corowa Local Environmental Plan 1989 Murray Region Regional Environmental Plan No 2 - Riverine Land Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005
DATES OF HEARING:	29,30 March 2010
EX TEMPORE JUDGMENT DATE:	30 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister SOLICITORS Kell Moore Lawyers RESPONDENT Mr M Astill, solicitor SOLICITORS Blake Dawson