Acquaro v Great Lakes Council

[2003] NSWLEC 372

>

Land and Environment Court

of New South Wales

CITATION:

Acquaro v Great Lakes Council [2003] NSWLEC 372 revised - 09/01/2004

PARTIES:

APPLICANT
Raffaele Acquaro

RESPONDENT
Great Lakes Council
.

FILE NUMBER(S):

10846 of 2003

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Access
Bushfire risk
Adequacy of flora and fauna assessment
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Rural Fires Act 1997
Great Lakes Local Environmental Plan 1996
.

CASES CITED:

Manzie v Willoughby City Council 96 LEC 26;
Weal v Bathurst City Council [2000] 111 LGERA 181;
.

DATES OF HEARING:

5 December 2003

EX TEMPORE
JUDGMENT DATE :

12/05/2003

LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENT
Mr P Rees, solicitor

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10846 of 2003

Moore C

5 December 2003

Raffaele Acquaro

Applicant
v

Great Lakes Council

Respondent

Judgment

Introduction

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“the Act”), against the refusal on 16 August 2002 by Great Lakes Council of Development Application DA703/2002 for a rural shed to be used for mushroom farming on Lot 746 DP 13358 at Tenterfield Road, North Arm Cove.

The site

2 The site is located in a Burleigh Griffin subdivision dating from the 1920’s. Although, with respect to this subdivision, it is the council’s position that there some 3000 allotments contained in it and the applicant’s position is that there is some 4000 allotments, nothing turns on the difference in calculation. It is, however, the common position of the parties that there is essentially no development in this estate in the reasonable vicinity of the site.

3 The proceedings commenced with a view on the site on the morning of the hearing followed by a more formal hearing at the Tea Gardens Community Centre operated by the council.

4 At some stage during the view, it was observed by Mr Keegan, who is the council’s Manager – Transport (and not contradicted by the applicant) that the state of the roads which were observed within the subdivision during the course of the view were constructed to a particular (but not observable) original standard by a company seeking to sell allotments within the Burleigh Griffin subdivision at sometime in the early 1980’s. It was also his observation that, apart from any maintenance that might have be undertaken by that company during the early years of its marketing endeavours, little if any (and certainly no significant) maintenance had been undertaken on those roads during the intervening decade and a half or so.

5 Access to the site is a significant issue in the proceedings and it is appropriate to observe arising from the view that there is an extensive informal road network within the Burleigh Griffin estate with the current practical access to the site being from the Pacific Highway via Glenn Innes Road through Quirindi Road and then onto Tenterfield Road to the site.

6 If approved, the council’s required access for the site is from the Pacific Highway via a road dually described as Somerset Avenue or North Arm Road, which is a made road maintained by the council, then via Quirindi and Tenterfield Roads, which are within the estate.

7 During the course of the view, the parties inspected the portion of Tenterfield Road from the site to its intersection with Glenn Innes Road and portion of Quirindi Road to the north of Glenn Innes Road.

8 The parties did not walk the full distance along Quirindi Road as it was agreed that it was not necessary as the portion inspected was generally representative of what would otherwise have been seen.

9 The parties observed the existence of a washaway, impassable to any normal vehicle at a point some 100 m or so to the north of the intersection of Quirindi and Glenn Innes Roads. The issue of preferred road travel route will be discussed further addressing the issue of access.

10 The site is zoned 1(a) Rural by the Great Lakes Local Environmental Plan 1996 (“the LEP”). The land use table contained, in the LEP at p 3, notes that a range of activities are permitted on development consent – amongst which is intensive agriculture. The application is for an activity which falls within the definition of intensive agriculture appearing on p 14 of the LEP, which is tendered with the statement of evidence of Mr Gavin Maberly-Smith, the Manager – Development Assessment of the council.

11 Intensive agriculture is defined as meaning:

…. a form of agriculture such as an intensive livestock enterprise, which requires particular treatment or practices, management of wastes (including species or other bi-products) [followed by other words which are not relevant in the present circumstances].

12 It was the evidence of the applicant that most of the ancillary activities that would be undertaken on the site would be the bagging of used compost and the recycling, in a closed cycle fashion, of water used for the purposes of growing mushrooms.

13 I am satisfied that these activities bring the proposal within the definition of intensive agriculture and therefore it is not ordinary agriculture which does not require development consent pursuant to development control 1(a) for the zone.

14 The council filed a formal statement of issues on 9 September 2003 for the purposes of these proceedings. However, issues in contention can be summarised as being as follows:

• The adequacy of access for various purposes;
• The adequacy of the plans;
• The adequacy of bushfire protection of the structure and ancillary materials stored around it;
• The adequacy of effluent disposal;
• Requirements for disability access facilities and
• The adequacy of the flora and fauna study provided by the applicant.

15 The council’s representative tendered, at the commencement of the proceedings, the council’s proposed without prejudice conditions. These had only been finalised shortly prior to the hearing and were not served on the applicant within the time required by the Rules.

16 As a result of this and as a result of the fact that the applicant is appearing in person and not being legally represented or advised in these proceedings, an informal and discursive process was undertaken between the Court and the parties concerning these conditions. This process resulted in a number of amendments and alterations to the conditions, which remained on a “without prejudice” basis as the council maintained its position that the appeal should be dismissed notwithstanding those conditions.

17 In addition and as a consequence the applicant being unrepresented, there was a further degree of informality undertaken by the Court in the interest of natural justice and fairness. This was particularly manifested with respect to the material that was tendered by the applicant and admitted into evidence as exhibit C – being a document described as an eight part test report prepared by Wildthing Environmental Consultants.

18 In the ordinary course of events, this document would not have been admitted in the proceedings as:

• it had not between served as a statement of evidence;
• there were no curricula vitae of the authors; and
• there was no indication of the Expert Witness Practice Direction having been provided to those preparing the report as would be required by the practice direction.

19 I indicated immediately to the parties that having seen that, I concluded, on extremely narrow grounds, that I ought to dismiss the appeal.

20 However, because the ground is quite narrow, I consider it appropriate to deal with all of the issues in the proceedings for two reasons. The first is, in accordance with the discussion by Bignold J in Manzie v Willoughby City Council 96 LEC 26, that an exposition of what might be regarded as material for the applicant and to the council may be of assistance if they undertake further negotiations in order to seek to reach an acceptable development. I note that if such observations are of no assistance to the parties if the matter remains contested and at some future time proceeds to a further hearing before the Court, these comments are not relevant in such future proceedings.

21 Second, I am mindful, as I will return to later, of the evidence of the applicant that he resisted a number of the council’s proposed conditions on the basis of their unaffordability.

22 I considered it appropriate, as the applicant will necessarily require to consider what attitude he might take in further application, to give him guidance in that regard as it may well be that the conclusion that I have come to on a number of the conditions, whilst favourable to him in an absolute sense, may be unfavourable in the sense that he considers unacceptable and costly.

23 I turn first to the issue of access in the roadway as this is the area about which there is the most contrast in the positions to the parties.

24 Essentially, the council has adopted the position that access should be via Quirindi Road and Tenterfield Road from the existing made public road – Somerset Road. This would require an access link of some 1.2 km. The council puts the proposition that this road should be constructed to the standard required of a public road being the standard set out in chapter 4 of a document known as Planning for Bushfires. In this document, at 4.31, public roads (the design criteria) set out on p 19 a range of matters. The relevant ones require 2 wheel drive access on a two way road with 8 m carriageway. They also require that it be a through road system although, in some exceptional circumstances, a dead-end road system might extend 200 m in length.

25 The applicant, on the other hand, puts the proposition that he is prepared to do some work to maintain the road to an acceptable standard if it was approximately the standard that it might have achieved during the initial period after it was formed or maintained by the development company. However, he did not consider it necessary to construct it to the standard that would meet the standards set out in Planning for Bushfires.

26 I do not consider that it is necessary for me to determine whether the standard which is set in the council’s proposed condition 6A is equivalent to that which set out in 4.3.1 of Planning for Bushfires.

27 I simply consider it appropriate to deal with the two competing standards – being the Planning for Bushfires standard and the standard envisaged by the applicant. Essentially, the applicant’s standard, as I understand it, is that the standard of construction and maintenance would be what I would describe as a cautious two-wheel drive access.

28 Evidence was given by statement of evidence and orally by Mr Keegan. Concerning these matters, in his statement of evidence at p 2, he describes the present standard that the road is being a thin layer of gravel that has been run out to form a track without any preparation of the sub grade or appropriate regard to drainage. The track is not being maintained and is badly warn and eroded. On page 3 of his statement of evidence, he advances six propositions as having been confirmed by his inspection of Quirindi Parade and Tenterfield Road. The first four of these are:

• These roads are not 2-wheel all weather roads but are 4-wheel drive access. I do not accept, from the view, that that is an entirely accurate statement as some extremely limited 2-wheel drive access might be available during all weather but it would to be extremely cautious access.
• The second observation was that these roads cannot handle 2-way traffic and I accept that statement.
• The third observation is that these roads do not have at least two traffic lanes width that is an 8 m minimum and that was undoubtedly correct.
• The fourth observation was that these roads do not have a shoulder on either side and that is also obviously correct.
• The fifth observation was merely a restatement of the second observation in different form.
• The sixth observation that these roads are not through roads. In that regard, the evidence of Mr Acquaro was that Tenterfield Road proceeded further to the south and thence back to Pacific Highway. That appears to be the position from the map which has been put in evidence in various fashions. That proposition was not contradicted and nor was the opportunity for an inspection of that taken up by the council and I decline to accept the sixth proposition.

29 However, those with both comparatively minor inaccuracies, I consider that Mr Keegan’s evidence as to the present state of the road accurately records the position.

30 At the instigation of the Court, Mr Keegan gave oral evidence concerning the general state of roads in the Shire. He indicated that there was approximately 400 km of unsealed road within the local government area and that much of this did not meet the minimum standard. Indeed, he instanced that there was at least one council maintained road in the broad regional vicinity which was only some 3 m wide and that it had a sandy base.

31 He indicated that the minimum acceptable standard for local access would be a 5 m hard or sandy based structure with appropriate provisions for drainage and the like. He indicated in the present context that, if watercourses were to be traversed, the appropriate treatment would be for the construction of culverts and piping.

32 There was some discussion between the applicant and Inspector Braydon about the attitude which the Rural Fire Service would take to fire fighting in the vicinity of the proposed mushroom shed if such fire were to occur. It was Inspector Braydon’s comments that he would be likely to pull out crews rather than have them fight a fire in these circumstances and that he would certainly not permit his fire crews to access the area if the road were maintained only at what he described as fire trail standards.

33 The LEP, in the Development Control Table for zone 1(a) Rural, has two objectives in the zone, which are relevant to the issue of access. The first discourages any development which might generate significant additional traffic or create or improve the condition of urban development on any road relative to the capacity and safety of the road. The second discourages unreasonable uneconomic demands for the provision or extension of public amenities or services.

34 There are two specific issues that arise in this regard. The first is the extent to which any additional traffic might be generated by the proposed development and second is that the proposed development would or possibly would create an unreasonable demand on any public services – in this instance the Rural Fire Service.

35 The first of these arises as the applicant envisages that there will be a supply vehicles and an effluent pump out tanker together with worker vehicle and product removal vehicle movements to and from the site. This evidence, which is not significantly contradicted by the council, is accepted by me as demonstrating that there would be some five or six movements of this nature per day. This would not be a uniform pattern and there would be less movements during the non-harvesting period. I am satisfied, by this evidence, that the generation of additional traffic would not be so significant as to constitute a breach of the zone objectives.

36 Objective 1(b) is, however, a more serious one and calls into play the issue of safety of those who might be on the site together with the safety of those who might be called on to protect them whilst they were on the site

37 I have already discussed in some detail the difference between the parties as to what would be appropriate access road standard. It seems to me that there are only two options realistically available to me – neither one of which is to adopt the minimalist approach proposed by the applicant. However, I am satisfied that either of the proposal I note below would be capable of imposition by condition and would not therefore warrant refusal of the appeal.

38 The two options that are possible are that the applicant upgrade Quirindi and Tenterfield Roads to a standard to meet the local access standard required by the council. This, it would appear from the evidence, is a somewhat less onerous standard than that which would be required to meet the standard required under the bush fire planning standards. The second, on balance less desirable option, would be to require the applicant to construct and maintain to the minimum standard of council’s own roads.

39 It is a critical position that in the public interest that the State, the Court or any other consent authority should not permit development to be undertaken under circumstances where there might be a reasonable apprehension that the life or physical or well being of volunteer emergency services personal – in this case the Rural Fire Service volunteers – should be compromised by any consent granted.

40 Whilst I can see that, had this been a question of whether an existing road operated and maintained by the local council to its minimum local access standard should be required to be upgraded, it might have lead to the conclusion that it was not necessary. This is not the position of the case. I have taken the view that it would appropriate to impose by condition, if consent were to be granted, a condition that required the road to be constructed to a standard which met the standard set out in 4.3.1 of Planning for Bush Fires and equally that future maintenance would be required to be in the hands of the applicant and at his expense.

41 The applicant protested, in the course of his evidence, that he should not be required to meet the cost of construction and maintenance of a road that would provide a benefit to others as there was already other traffic travelling across the road. This was a position that seemed reasonable from the usage indicators that were on the site of the existing road.

42 However, that is no reason to set aside the public interest of protection of the Rural Fire Services personnel.

43 There are two matters, had I been minded to give an approval would have been appropriate for the applicant to consider in the future.

44 First is the possibility that, as a result of the realignment of the Pacific Highway access via Glenn Innes Road might be possible with the consent of the Roads and Traffic Authority. If that were to arise, there would be an appropriate avenue for a modification application for amelioration of these provisions.

45 Secondly, with respect to the possibility of there being future applications seeking to piggy back, as it were, on any construction undertaken by the applicant, it would be appropriate for the council to propose conditions on that requiring that any such applicants also contribute to the maintenance of the road. I am therefore satisfied that the whole of the issue of access to appropriate standard could have been dealt with by way of imposition of appropriate conditions.

46 The next issue that arose for consideration was the adequacy of the plans. There are several different plans, including several different versions of revision C of the plans that were shown during the course of the proceedings. However, the differences were minor and I am satisfied that all of them could have been dealt with by way of condition or for if necessary by way of a decision on the matters of principle and adjourning the proceedings to enable a clarified set of plans to be filed in the proceedings. The adequacy of the plans does not provide a basis to reject the application.

Bush fire protection of the premises

47 Mr Short and Inspector Braydon gave evidence concerning the desirable dimensions of an asset protection zone and some concerns that they had about the width and maintenance of the driveway. Subject to issues of ability to enforce, it did not appear that the Rural Fire Service concerns in this regard could not have been satisfied by way of condition.

48 My attention was drawn to the provisions of the Rural Fires Act 1997, which merely permits the delegated authority (the Rural Fire Service) to give notice to an occupier or an owner for hazard reduction purposes. To the extent that this might have been a legal deficiency in the powers in the Rural Fire Service, I am satisfied that the proposed deferred commencement condition proposed by the council requiring that easements for access for the purpose of hazard reduction across the adjacent allotments in favour of the applicant being a necessary pre-condition to any construction are sufficient as Inspector Braydon indicated that what was required was enforceability on the applicant and an ability for the applicant to undertake the work required.

49 I am satisfied that a condition of consent would create this through enforcement mechanisms available through the Court if not through the Rural Fires Act.

50 A subsidiary issue arose as to the size of the dedicated water storage which would be required for fire fighting purposes. Inspector Braydon gave evidence that the appropriate size was 22000 litres and there was no factual basis of challenge for this by the applicant. Inspector Braydon considered that, although this could be a multiple tank installation, any such tanks should be made of non-combustible material. I accept his evidence in this regard. Whilst a single 20 or 22000 litre concrete water tank as proposed by the council’s conditions might be unduly restrictive, I am satisfied that the proposed volume is appropriate and the proposed method of construction of the tank/tanks of concrete is also appropriate under the circumstances.

Effluent removal

51 The statement of environmental effects, lodged on behalf of the applicant, notes at appendix 1 paragraph 2 that it is proposed that effluent be removed by pumping out of a septic tank system.

52 The council does not apparently object to this concept according to the evidence of the applicant. It is the position of the council, as I apprehend it, however, that it has concerns about tanker access which I consider are adequately addressed by my earlier discussion of the road access issue – that is access to the site – but is also has some concerns about access in turning on the site. These are capable of being dealt with by condition and, given that the appeal is not to be upheld, there is sufficient time for the applicant to consider, if he proposes to do so, detailed issues of design of such a system and the like.

53 In doing so, he might consider further options, which he does not appear to have considered, such as a clivuus mulstrum composting system or other similar composting design for such toilet facilities which do not require the same degree of removal of liquid effluent.

Disabled Access

54 There is absolutely no reason why the Court should, even if it were minded to do so, set aside statutory or instrumentally required standards for access and facilities for disabled persons notwithstanding the view of the applicant that they are not likely to be utilized. Standards are set in statutory frame works for appropriate reasons for public policy and I would require in any conditions that they be met.

Flora and fauna assessment

55 The matter on which the application fails, in my view, is the adequacy or otherwise of the flora and fauna impact considerations. The applicant filed a report by Messers Mungo and Gary Worth of Wildthing Environmental Consultants. Mr Bell acknowledged, in his oral evidence, that he was aware of these consultants and he did not criticise their qualifications or the capability to undertake such a report. However, he did criticise the nature of the report that was provided in this instance.

56 He admitted its adequately discussion of the range of issues but made a number of detailed criticisms both as to its general methodology and to a number of specific issues particularly relating to a threatened species known as Tetratheca juncea which is a blacked eyed susan – a flowering plant.

57 The criticism that was specifically made of this aspect of the report arises from the normal botanic flowering times of this plant and the fact that the present populations or seed which might be in the location would have been significantly suppressed by major bushfire event which took place on the site some two years ago.

58 This criticism of this is set out in some detail by Mr Bell at point 2 at p 6 of his report. It reads:

The flora field surveys were conducted outside of the accepted flowering period of Tetratheca juncea and were conducted at a time when the habitat of the study area was significantly affected by a serious bushfire event. Consequently, there is inadequate field survey data on which to base any conclusions as to the presence or alternately, the absence of a local population of this species within the study area. The report fails to consider sampling during appropriate seasonality to adequately test for Tetratheca juncea or delaying the surveys to such time that there had been an adequate level of vegetative regrowth over the groundcover of the study area. In the absence of this data, there is insufficient information on which to derive any conclusions as to the true effect of the works.

59 There is an acknowledgement of the deficiency of the report in this regard on p 9 of the Wildthing Report where it says:

It should be noted, however, that the fieldwork was not undertaken within the accepted flowering period of three relevant species including the black-eyed susan.

60 In its discussion of the first element of the eight part test required to be undertaken in such circumstances, there is the requirement in that that there has to be an assessment of the possible disruption of a viable population in the locality of this species and whether there is any likelihood of that local population being placed at risk of extinction.

61 I am satisfied that it is the conclusion of the expert evidence admitted on behalf of the applicant as well as the expert evidence on behalf of the council that there were sufficient deficiencies in the sampling methodology of that aspect of the report as well as a deal of validity in the general commentary made by Mr Bell on other further work which might be the appropriate to be done to leave me in a position where I do not have sufficient information to be satisfied that there would not be an unacceptable impact, at least on that species and possibly in a broader sense.

62 The council had proposed, in its without prejudice conditions of consent, a deferred commencement condition kin this regard which would have required a further survey to be undertaken. This condition would have read:

A survey of the site to determine whether the site, adjoining Lots 745 and 747 DP 13358 referred to ‘deferred' condition 2 and the area of road to be constructed under 'other' condition 6 are affected by the presence of Tetratheca juncea is to be undertaken by a qualified ecologist between the months on June and December 2004. If T juncea is identified on the site and/or the other lots and/or part road referred to above, the ecological consultant is to identify in the survey report referred to below, measures to mitigate impact on the species/population/habitat including relocation of the building and sensitive clearing of Asset Protection Zones. A report on the survey and mitigation measures is to be submitted to and approved by Council to satisfy this condition.

63 I am satisfied that the concluding sentence in this proposed condition, which requires a report on future activities relating to a threatened species being submitted to and approved by council, would constitute a sufficient lack of certainty in the granting of a consent to be in breach of the principles arising from the decision of the Court of Appeal in Weal v Bathurst City Council [2000] 111 LGERA 181.

64 I am not satisfied that the Court, as consent authority, could grant such a condition and do so lawfully given the importance of the issue as pleaded by the council and as accepted by the Court. Therefore I have come to the conclusion that the inadequacy of that aspect of the application requires me to dismiss the appeal.

65 The conclusion that I have each has led me to give this somewhat lengthy judgment than might otherwise have been the case because of the applicant’s evidence expressed concern of the affordability of measures that might be required to give effect to the application if he were to be given consent.

66 I have dealt therefore with all of those aspects so that he could have an appreciation of at least of what were the Court’s views of those issues even though they would not be binding on the council for any future application: see Manzie v Willoughby City Council.

67 The remarks have been made, however, in order to provide some guidance to him in his consideration of his position as to whether or not to lodge a further application and to provide some assistance to the council if there are to be discussions between the parties on how any such application might be processed.

68 The orders of the Court, therefore are:

1. The appeal is dismissed;
2. Development Application 703/2002 for construction of a shed and associated facilities for mushroom farming at Lot 746 DP 13358, Tenterfield Road, North Arm Cove refused; and
3. The exhibits are returned.

Tim Moore

Commissioner of the Court