Al Ali v Gosford City Council
[2013] NSWLEC 1261
•23 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Al Ali v Gosford City Council [2013] NSWLEC 1261 Decision date: 23 December 2013 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld.
(2)Development consent is granted for the proposed educational establishment (Senior Agricultural School) on Lot 87 DP 755252 being land at 2964 Wisemans Ferry Road, Mangrove Mountain in accordance with concept plan exhibit F, subject to conditions of consent in exhibit 25 as amended to incorporate the proposed pump out system.
(3)The council is directed to forward conditions electronically to the court with 21 days.
(4)The exhibits are returned apart from exhibit 1, 25 and F.
Catchwords: DEVELOPMENT APPLICATION - proposed agricultural high school on prime agricultural land - whether the school is properly characterised as an agricultural use - whether the school should be approved as a matter of public health policy given its proximity to a drinking water catchment Legislation Cited: Environmental Planning and Assessment Act 1979 - Section 79C and 91, Schedule 4A
Interim Development Order No 122
Draft Gosford Local Environmental Plan 2009
Local Government Act 1993 - Section 89
Threatened Species Conservation Act 1995
The Water Act 1912
Rural Fires Act 1997
Protection of the Environmental Operations Act
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No. 55 -Remediation of Land
State Environmental Planning Policy No. 19 -Urban Bushland
Sydney Regional Environmental Plan No 20 -Hawkesbury/Nepean River Sydney Regional Environmental Plan No 8 -Central Coast Plateau Areas Sydney Regional Environmental Plan No 9 -Extractive Industries
Development Control Plan No 89 - Scenic Quality
Development Control Plan No 106 - Controls for Site Waste Management 2005 Development Control Plan No 111 - Car Parking
Development Control Plan No 165 - Water Cycle Management
Central Coast Regional Strategy
Council Policy No D6.41 (Water Supply Catchment Area)Cases Cited: Conservation of North Oceans Shores Inc v Byron Shire Council &Ors [2009] NSWLEC 69;(2009) 167LGERA 52 Preston CJ at [77]
Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 66 NSWLR 177Category: Principal judgment Parties: Ghazi Al Ali (Applicant)
Gosford City Council (Respondent)Representation: Mr Clay (Applicant)
Mr Fraser (Respondent)
P J Donnellan & Co Pty Limited (Respondent)
Lander and Rogers (Applicant)
File Number(s): 11047 of 2012
Judgment
Introduction
This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act). It concerns the refusal of a development application (DA 42013/2012) for an educational establishment. In particular, a privately operated, co-educational, agricultural high school for boarders on land at 2964 Wisemans Ferry Road, Mangrove Mountain (the site).
The application was dealt with by the Hunter &Central Coast Joint Regional Planning Panel (JRPP) because this school is classified as regional development under Part 4 of State Environmental Planning Policy (State and Regional Development) 2011 and Schedule 4A of the Act cl 6(b) - Private infrastructure and community facilitates over $5 million. The respondent in the appeal is however, the Gosford City Council (the council).
The issues in this case concern the suitability of this site for a school. And they arise because the land on which the school is proposed to be built is classified as "prime agricultural land" (as defined under cl 4 of Sydney Regional Environmental Plan No 8 - Central Coast Plateau Areas (SREP 8) and is located about 1.2km from the Mangrove Creek Weir, which is the major raw water supply conduit for Gosford City. It is the council's case that the intensification of the use of the site for the purpose of an agricultural boarding school, will adversely impact on the water quality in the Mangrove Creek Weir catchment. It is concerned about the potential for stormwater (including during the construction phase) and treated effluent discharges from the development adversely impacting on groundwater quality, and contaminating or reducing the water quality in the Weir. And although by the end of the hearing the council conceded that in theory the development can be engineered and managed to meet the design quality criteria of "zero impact" it is concerned about system failure and the resulting risk to public health.
The council is also concerned about the lack of detail in the application. It contends that there is no evidence to support the assertion made by the applicant that the school will be operated as a "working farm" or that the land is ideally suited to establishing a senior secondary agricultural college with students comprising predominately boarders. It rejects the claim that the school needs to be located within an agricultural area of suitable soil quality (namely class 2 and 3 prime agricultural land) and, that the agricultural activities appropriate to the study of agriculture at senior secondary level are suitably sited with buffers and setbacks to neighbouring agricultural activities so as to ensure that there are no unacceptable land use conflicts.
The local residents also raise objection to the development of a school on the site. A large contingent of them attended the Court's view and took the opportunity to speak to the Court about their issues (which are reproduced in Contention B3 of the exhibit 1). They include concerns about land use conflict, vandalism by students, the viability of the proposal and, a belief that the school community will not integrate with or contribute to the local community.
The applicant's response to the council and the local communities' outrage is that there is simply no legitimate planning reason why the school should not be able to operate successfully as proposed on the site. It contends the use is permissible and compatible with the adjoining agricultural land uses. Therefore, the Court can be satisfied as required by cl 6 of SREP 8 that the carrying out of the development will not adversely affect the present or future use of other prime agricultural land for the purposes of agriculture. And, also that there is no other land to which SREP 8 applies, not being prime agricultural land, that could provide a viable or workable alternative site for the carrying out of this development.
As far as the applicant is concerned this site is ideal for the proposal because the land area is large enough for the school to carry out all activities it needs in terms of teaching and practical agricultural activities and fertile enough with a climate conducive to the range of agricultural activities that are needed to provide the students with a diversity of agricultural experiences. The proposal offers two options for onsite waste water and stormwater management which the water experts agree are designed to ensure "zero impact' on groundwater and the water quality in the Mangrove Creek Weir catchment or any EEC. There is no issue about safe road access to the site because the proposal includes an upgrade to the Wisemans Ferry Road and engineered right and left turns into and from the site. There is no issue about onsite manoeuvrability of vehicles including school buses and garbage/sewerage collection trucks.
The applicant submits that because this school is focussed on teaching agriculture this development is appropriately and necessarily located on this site which is prime agricultural land. And the planners agree that if the development is approved about 80% of the site will remain in agricultural use as demonstration units to support the practical agricultural education of students. And based on the applicant's evidence there is no other viable or workable land for this development other than prime agricultural land within the area of the SREP.
Additional information
It is important to appreciate that since the assessment and refusal of this application by the JRPP the parties have obtained additional information and further expert evidence.
The additional evidence to which I refer includes reports from the applicant's civil and environmental engineering consultants, Mr Gawn and Dr Martens, and the Council's consultant Dr Deere who holds qualifications in water microbiology. This further evidence deals with the adequacy and appropriateness of water and effluent management associated with the school development including an alternate pump out system (exhibits D, E, 5, 6, 9 and 13).
The applicant's agricultural planner, Mr Truelove and Mr Docking from the Department of Primary Industries have conferred and also produced reports which address the need for this school to be located on prime agricultural land (exhibits B and 3). And the applicant's planning consultant Mr Juradowitch (NJ) and the Council's planner Ms Spithill have assessed alternate sites within the SREP not being prime agricultural land (exhibits 8,O and 24).
The parties' ecologists Mr Travers and council's Ms Ashby have investigated the development's potential to indirectly impact on the surrounding environment and the endangered ecological community listed as Coastal Upland Swamp in the Sydney Basin Bioregion located on adjoining Crown land to the rear of the property and the Red-crowned Toadlet and provided a joint report (exhibit 11).
The applicant's traffic consultant, Mr Pindar, has provided written evidence about site access and onsite truck manoeuvrability (statement of evidence filed on 24 May 2013).
How the additional information and evidence has reduced the matters in contention
As a result of the additional evidence the application was amended to offer an alternate pump out sewerage system instead of the onsite system and this amendment and further information has resulted in a reduction of the issues.
The dispute between the water experts has now been narrowed to an argument as to whether it is acceptable public policy to locate this development in this water catchment location. This is because Dr Deere (the council's water expert) has agreed that the proposed onsite treatment system and alternate pump out sewerage system - designed by Mr Gawn and endorsed by Dr Martens - in theory met the required design effluent quality criteria of zero impact. And while he maintains his position that the application should be refused from a public policy perspective if the development was to be approved that he preferred the pump out system (whereby sewerage is collected treated, stored and then removed from the site) to the onsite system because it provides less environmental risk in the event of failure.
It is also clear from the additional evidence received during the hearing that there is no general council policy that discourages the use of a commercial pump out system. All of the policy material tendered by the council relates to the discouragement of pump out for domestic systems within the local government area. Mr Brocklehurst's statistical data about the incidents of failure of sewer pump out systems within Gosford City (p 4 exhibit 20) related to domestic systems. And the evidence from the council's auditor of sewerage management systems, Mr Allison, that all pump out systems will in time fail essentially relates to his assessment of domestic pump out systems (exhibit 19). Similarly, his reliance on the NSW Environment &Health Protection Guidelines On-Site Sewerage Management for Single Households deals with domestic pump out systems.
In fact as the applicant points out the council's Onsite Sewerage Management Strategy (exhibit L) provides a detailed policy setting out the framework for the implementation of ecologically sustainable onsite sewerage management throughout the Gosford City area (p 1.5, 6). The assessment program includes risk assessment as set out from p 15 and the subject site is within the low risk category (p 5.3.1 p 15). Furthermore, the applicant submits that the risk assessment for the two systems proposed in this application is also low. At p 17 of the strategy there is an assessment of the 94 pump out systems in Gosford LGA, which are, all classified as low. Figures for individual systems are apparently monitored regularly to ensure that a satisfactory service is being maintained. Council has not brought any evidence of problems in relation to the 94 operating commercial pump out systems in the area. And at p 19 of the strategy where it deals with major commercial systems it states that 12 large commercial OSSM systems installed at various locations throughout Gosford including caravan parks, childcare centre an schools are regularly inspected and there is no evidence before the Court of incidents as a consequence of system failure reported. The applicant contends in this case the council's inspection programme and the licensing requirements and conditions will ensure there is no failure of its system either.
I asked the council which sewerage system it preferred (if faced with a choice) and the council indicated that it would prefer the proposed pump out system to the onsite system because it offered less risk of contamination in the event of system failure.
The ecologists, Ms Ashby and Mr Travers, also prefer the pump out system. They told the Court that the impact of the development on the surrounding natural environment and EEC (as discussed in their joint report exhibit C) is satisfactorily addressed if a pump out system is used because it avoids the risk of runoff or leaching into the natural environment as a consequence of system failure. And from their perspective if the Coastal Upland Swamp (CUS) and Scribbly Gum Woodland (SGW) are not impacted by the proposal (by the use of a pump out) then that satisfies the aims and objectives of SREP 8 namely: "(g) protect the natural ecosystems of the region... and (h) maintain opportunities for movement of wildlife across the region" and cl 3 of SREP 8 "A council shall not grant consent to development on land to which the this plan applies where, in it opinion, the carrying out of the development shall result in the destruction of sedgelands". The ecologists are also satisfied that the State Environmental Planning Policy No 19 (SEPP 19) objective re conservation of threatened species is achieved if the CUS and SGW are not impacted (p 7 exhibit 11) and, the key objective re maintenance and enhancement of water quality in the catchment under Sydney Regional Environmental Plan No 20 (SREP 20) is also satisfied if the CUS and SGW are not impacted upon by the proposal.
With respect to the ecologists' concern about student arsonists and increased traversing of the EEC and after a consideration of the concept plan/proposed plan of management tendered by the applicant they told the Court that they were no longer worried about these issues. The number of students is limited to 100 and the residential staff and other staff will be responsible for the regulation and monitoring of the student's behaviour.
As noted above Mr Pindar, the applicant's traffic expert has provided written evidence about vehicular access to the site and manoeuvrability of vehicles on site. In his assessment the design is compliant with relevant standards and acceptable on a merit assessment with respect to traffic and parking. The council has not called any traffic evidence to contradict Mr Pindar's assessment therefore, I accept his evidence.
Remaining Contentions
In my assessment the remaining jurisdictional and merit contentions raise the following questions:
1.Does the school need to be constructed on prime agricultural land as defined under cl4 of SREP 8?
2.Is the school properly characterised as an agricultural use of the site and, if so, is it consistent with the relevant zone objectives under the IDO 122 and the provisions of cl6 SREP 8?
3.How does the development comply with the Draft LEP, CC regional Strategy, and SREP20
4.As a matter of public health policy should the development be approved on the proposed location?
5.The public interest - including the objectors' concerns (contention D3 of exhibit 1)
In order to answer these questions and assess the merits of the application under s 79C of the Act I have relied on the following facts taken from exhibit 1 and the application exhibit 2.
Site and location
The site is Lot 87 DP 755253. It has an area of about 25.5 hectares. Historically, it was part of a larger property that was operated as a citrus orchard.
Today, however, the property is in a state of disrepair. It is largely unfenced and contains two dilapidated dwellings and some machinery sheds and a partially filled dam on the southwestern corner of the site. Most of the land has been cleared although some treed areas remain in the northeast corner and, along the rear boundary and the northwest portion of the site. The site has in recent times been used for cropping and grazing of cattle.
The land slopes gently towards an existing bushland reserve at the rear and drains to the south west, through the bushland reserve into Crafts Creek, which discharges directly into Mangrove Creek, approximately 1.2 km from Mangrove Creek Weir which is the major raw water supply conduit for Gosford City's water supply. Water is pumped directly from the weir to the Somersby water treatment plant for processing prior to distribution to consumers.
The site is not connected to the council's water and sewer mains. Therefore, the application has proposed an onsite sewerage management system and an alternative pump out system.
There is no dispute about the fact that the school has access to the water required for agricultural purposes (p 11 exhibit 11). According to the evidence the owner of the property holds an irrigation licence allowing him to extract up to 75ML per annum from the Crafts Creek. The water is stored in a licensed dam, approx 350m long, on land owned by him adjacent to the school. There is also a licensed bore on the property for stock and domestic use. This means that water for livestock is reliably available from the bore and does not need to be taken into account when allocating the water extracted from the river as all of it can be used for irrigation. A fully functional irrigation system, including extraction pump is located on the land adjacent to the dam. A 6 inch distribution pipe is already in place that can channel water onto the school site from the dam.
The applicant will need to obtain a Part 5 groundwater licence under the Water Act 1912 for the purpose of the commercial uses (Tab 10 2 volume 3).
Surrounding land use
The catchment of the Mangrove Creek Weir is rural in character comprising a mix of naturally vegetated bushland, farming and associated activities such as a wholesale plant nursery on the adjoining land.
A crown road reserve adjoins the northern boundary of the site and beyond that is a large wholesale nursery called "Marrion Grove". To the rear of this nursery is cleared grazing land.
To the west, northwest and southwest of the site is Crown Land recreation reserve comprising natural bushland, with a fire access trail extending north south near the western boundary of the site. To the south of the site is a Pony Club of which the rear two thirds comprise natural bushland. To the east, Wisemans Ferry Road adjoins the site. On the eastern side of this road are orchards, a wholesale plant nursery and a rural residential establishment.
The proposal
The agricultural high school is intended to cater for about 90 to 100 senior secondary students in Years 10,11 and 12. About 75% to 80% of the students will be boarders and, the balance will be comprised of day students from the Gosford/Wyong area. A total of 14 full time and part time staff will be employed including 8 teachers, a principal and support staff.
The focus of the school will be on agricultural studies (in addition to a range of other subjects to cater for the requirements of the NSW Higher School Certificate). The school will be similar to other state agricultural schools like James Ruse or Hurlstone Agricultural High School (albeit privately run and on a much smaller scale).
The layout of the school is detailed in the master/concept plan dated 5 September 2012 that forms part of the approved plans (exhibit F). The school buildings comprise six classrooms, library, administration office, amenities, kitchen and dinning facilities area, an indoor recreation space (northern wing) and students' accommodation (southern wing). The buildings will have a total floor area of 3,362 m2. The accommodation wing includes eighteen students' accommodation rooms (ranging in size from 15.8m2 to 25m2) and, these rooms are designed to accommodate between four and five students. A common bathroom is provided to this area and an accommodation suite is also provided for a live-in teacher.
An 800m2 outdoor paved play/sport court is proposed to the west of the school building and a grassed play/outdoor activity area will be located between the school building and the paved play area.
The existing access driveway off Wiseman's Ferry Road is to be utilised for vehicle access to the school. A parking area and school bus bay is proposed to be located on the eastern side of the administration office building and a library and will provide a total of thirteen car spaces for staff and visitors and a bus bay suitable for a small minibus.
The school buildings are to be located in the central portion of the site and are setback between 160 and 200 m west of the road frontage.
The original application proposed that the effluent will be collected and treated on site and discharged into a 9,220m2 grassed effluent disposal area in the central western portion of the site. The design also included an adjoining 9,220m2 back up reserve disposal area. However, after Dr Deere raised the issue of a pump out system the Court invited the applicant to investigate that system for the site. Which it did and accepts if the Court so determine.
Dr Martens describes and assesses the pump out system in his supplementary statement of evidence (exhibit M). The proposal for the pump out system is simple. The waste is received in one tank treated and then transferred to the storage tank from which it is pumped out to the tanker at whatever interval is required. The tanker will remove the waste approximately every 3 days. However, both the storage and treating tanks have a capacity for a week's waste. And the proposal places bunding around the tanks to contain any accidental overflow.
A dam is proposed for non-potable use, bushfire protection and irrigation and it will be located to the rear of the school building and will have a holding capacity of 1000m3.
According to the application a wide range of agricultural enterprises could be considered for the site however the following have been selected as part of this working farm application: grazing of livestock - boer goats for meat; field crops - autumn broccoli sown 1 April - winter lettuce sown 1 July -sweet corn sown 1 November; orchard - Eureka lemons; General Ag use - oats for grazing and grain - (as discussed by Mr Truelove the applicant's agricultural planner in his report Agribuz Consulting (February 2013) and referred to at p 12 Addendum report by John Travers (exhibit 11).
Statutory Controls
The following statutory controls and policies are relevant in my assessment of this application:
- Environmental Planning and Assessment Act 1979 - Section 79C and 91, Schedule 4A
- Interim Development Order No 122 (IDO no 22)
- Draft Gosford Local Environmental Plan 2009 (draft LEP 2009)
- Local Government Act 1993 - Section 89
- Threatened Species Conservation Act 1995
- The Water Act 1912
- Rural Fires Act 1997
- Protection of the Environmental Operations Act
- State Environmental Planning Policy (Infrastructure) 2007
- State Environmental Planning Policy No. 55 -Remediation of Land
- State Environmental Planning Policy No. 19 -Urban Bushland
- Sydney Regional Environmental Plan No 20 -Hawkesbury/Nepean River Sydney Regional Environmental Plan No 8 -Central Coast Plateau Areas Sydney Regional Environmental Plan No 9 -Extractive Industries
- Development Control Plan No 89 - Scenic Quality
- Development Control Plan No 106 - Controls for Site Waste Management 2005 Development Control Plan No 111 - Car Parking
- Development Control Plan No 165 - Water Cycle Management
- Central Coast Regional Strategy
- Council Policy No D6.41 (Water Supply Catchment Area)
The proposal is defined as "integrated" development under s 91 of the EPA Act and, the NSW Rural Fire Service has granted general terms of approval for a Bush Fire Authority for the development on 3 May 2012. I note that the general terms are incorporated in the conditions of consent.
No Jurisdiction (questions 1 and 2)
The council contends that the Court has no jurisdiction to grant consent to this development because it cannot be satisfied of the matters raised in cll 6 (2)(b) and (5) of SREP 8.
Clause 6 of the SREP provides:
"6 Prime agricultural land
(1) A person shall not:
(a) erect a building on prime agricultural land,
(b) construct a dam on prime agricultural land, or
(c) subdivide prime agricultural land,
except with the consent of the council.
(2) A council shall not consent to an application to carry out development on or with respect to prime agricultural land unless:
...
(b) the council is satisfied that the carrying out of the development would not adversely affect the present or future use of other prime agricultural land for the purposes of agriculture.
(5) A council shall not consent to the carrying out of development on prime agricultural land for a purpose other than a purpose of agriculture unless it is satisfied that no other land to which this plan applies, not being prime agricultural land, could provide a viable or workable alternative site for the carrying out of the development..."
(emphasis added)
According to the Council the provisions in cl 6 give substance to the aims in cll 2(a), (b) and (g) of the Plan. They do this by providing a basis for evaluating competing land uses and to encourage use of land of high agricultural capability for that purpose and, as much as possible, direct development for non-agricultural purposes to land of lesser agricultural capability.
Clause 6 (2)(b) and (5) of SREP 8 are described by the council as "gateway provisions" or preconditions to the conferral of power to grant consent to this development. The Court's jurisdiction is only enlivened if it is satisfied as to the facts identified in cl 6. And the level of satisfaction required is "a positive state of mind based on a proper analysis of the evidence rather than the mere existence of such general material without any analysis": Conservation of North Oceans Shores Inc v Byron Shire Council &Ors [2009] NSWLEC 69;(2009) 167LGERA 52 Preston CJ at [77]:
With respect to cl 6 (2)(b) the council submits on the evidence of Mr Docking (exhibit 3) and Ms Spithill and the local objectors that the Court cannot be satisfied that "... the carrying out the development would not adversely affect the present or future uses of other prime agricultural land for the purpose of agriculture". Its position is that the school use will adversely affect present or future uses of other prime agricultural land for the purpose of agriculture.
And based on Ms Spithill's evidence the council submits that the Court cannot be satisfied as required by cl 6(5) "...that no other land to which SREP 8 applies, not being prime agricultural land, could provide a viable or workable alternative site for the carrying out of the development" (including any relevant land within the local government area of Wyong under the SREP) because the applicant has not undertaken the necessary investigations.
In order to address the matters raised by cl 6 the development needs to be characterised. Ms Spithill is of the opinion that the development can only be characterised as an "educational establishment". In her assessment it is not an "agricultural use". She forms this view because she has no confidence in the bare assertion in the application that the school will operate as an agricultural college with areas set aside for agricultural demonstration plots as indicated in the concept/master plan (exhibit F) (at pp 3 - 4 of the joint report exhibit 8). She is also critical of the lack of detail in the application. In particular, that the agricultural activities are not sufficiently explained in the application and that there is no detail about how the school will be run as an "agricultural high school", or any evidence of a draft curriculum or any other information for the ongoing management of the school to demonstrate the use of the land in any "agricultural" way at all (CWS at 18 paras [77]-[79]). And, based on that evidence the Council invites the Court to give little weight to the applicant's "bare assertions" that the school will be an agricultural school (CWS at p 22 para [101]).
In Council's assessment the land will be used, at best, for some "...experimental agricultural activities...agricultural learning namely learning why crops fail and why animal husbandry requires this practice and not that practice" (CWS at p 19 para [84]) but this does not increase agricultural productivity or a food source for the Sydney basin or the people of New South Wales which according to Ms Spithill is the intent of the cl 6(5) "use and reserve prime agricultural land to which the SREP applies for present and future agricultural use - via Food security."
The Council submits based on Ms Spithill's evidence that there is available alternate and appropriately zoned cleared land (under IDO 122) for the establishment of an agricultural school, (to which the SREPP applies) without the need to locate such facilities on prime agricultural land. The Court is referred to the areas identified in the "composite plan" attached to the joint report (exhibit 8). It is also submitted that the school development could be split into two components (with the buildings being sited on land that is not prime agricultural land) or the school development be located on a smaller area of land (less than the 20 hectares the minimum subdivision area in the 1(a) zone).
The council invites the Court to dismiss the applicant's planning evidence with respect to investigations into viable or workable alternate land (not being prime agricultural) in the Gosford and Wyong local government areas because it is based on the premise that Agricultural Class 4 - 5 is unsuitable for horticulture and other intensive farming and cropping activities that are the focus of the proposed agricultural secondary college (CWS p 21 at paras [97]-[98]. The Council submits that the premise is unsupported by the application or the evidence. And the applicant's elimination of land within the Wyong area falling within the SREP proceeds upon this unjustified requirement.
The council submits on the evidence of Ms Spithill's that an educational establishment can be located on appropriately zoned land, lower quality agricultural land within the Wyong LGA provided that the site does not contain physical environmental or other constraints which make the site unsuitable (CWS at p 21 para [99]. And, even if one were to accept the applicant's premise Ms Spithill's evidence is that there is available other land still to be investigated properly and eliminated within the Wyong area falling within the SREP which has not been subject to classification as primary agricultural land but still has the quality of soil which might be a viable or workable alternative. (CWS pp 21 and 22 at para [100]); (p 45 exhibit 24)
The Council relies on the same deficiencies with respect to the applicant's investigation of the Gosford land within the bounds of the SREP to support its submission that the investigations undertaken by the applicant are inadequate and, therefore, the Court cannot be satisfied as required by cl 6(5) (CWS pp 23 and 24)
With respect to cl 6(2)(b) the Council relies on the expert opinion of Mr Docking - who is agricultural planner with the Department of Industries - to submit that a school in the proposed location is not compatible with intensive agriculture use on adjoining land because of farming activities such as chemical spraying, farm noise and dust and bird scaring devices. The local residents (in particular the adjoining land owner) agree and add concerns that the students of the school will engage in theft and or vandalism of their farm equipment and hooliganism thereby adversely affecting other prime agricultural land for the purposes of agriculture.
Applicant's position
The applicant disagrees and submits that this school development is unique in that it is a "working farm" that needs to be developed on prime agricultural land. The proposal is to intertwine the classroom and agricultural activities on one site and offer a curriculum focussed on agricultural studies and revolves around onsite practical training. In order to achieve this objective, it relies on its planners' advice (exhibit 8 p 1) that the development requires a site with at least 7 to 10 hectares of good agricultural land suitable for the proposed intensive agriculture, including regular cropping in order accommodate the various agricultural uses identified in the concept plan in (exhibit F). And the subject site, which is prime agricultural land, fits all the selection criteria. Therefore, it submits the proposal is appropriately and necessarily sited on the proposed prime agricultural land and will have no adverse impact on present or future use of other prime agricultural land for the purpose of agriculture: cl 6(2)(b).
The applicant rejects Ms Spithill's evidence which separates the development over two separate sites or constructs it on a smaller site because that is not the proposal before the Court. It submits that in terms of the cll 6(5) and (2) the Court can is only concerned with the development as proposed by the application not another application.
The applicant submits that there is simply no evidence that there is some viable or workable alterative site that is part prime agricultural land and part non-prime agricultural land of the size and capacity proposed by this application so the Court can be satisfied as required by cl 6(5).
The applicant submits that the Court can be satisfied on the evidence that the carrying out of this development will not adversely affect the present or future use of other prime agricultural land for the purposes of agriculture, because the proposed use is compatible and to a large extent is for agricultural purposes (including the subsurface disposal area - authorised under the NSW DEC Effluent Irrigation Reuse Guidelines 2004). It refers to exhibit 2 Vol 1 Tab 3 p 17 the Ingham planning report states that: "More than 80% of the site will be retained for agricultural activity and it may be expected that agricultural productivity of the land will increase compared to the existing grazing use of the site. School activities are to be located on the lower quality agricultural land within the site. It is not viable or workable to develop an agricultural college on low quality agricultural land and provide the range of agricultural training that is necessary. It is considered that the proposal is consistent with the intent of cl 6(5)".
In terms of site area the agricultural use in this development will be greater than the adjacent lot upon which the nursery is operated -up to 82% of the site is proposed for agricultural use. And Mr Docking agreed that the agricultural pursuits detailed in the application require prime agricultural land namely: land comprising Agricultural Class 2 and better quality Agricultural Class 3 land as defined in the policy: cl 4
Finding on jurisdictional issues raised by cl 6(2)(b) and (5) SREP 8
There is no dispute that the site is prime agricultural land as defined under the policy: (exhibit 3 para [9] and joint report exhibit 7 para [7]) and, that the development is for a permissible use as an "educational establishment" as defined under IDO 122.
It is also clear on the evidence that the development is not for a regular school because the curriculum will focus on agricultural studies including grazing and animal husbandry, some intensive livestock, intensive plant agriculture such as orchards and row crops. This is supported by the fact that a large part of the site will be used for agricultural purposes - up to 82%. The concept/master plan (exhibit F), which forms part of the application, clearly identifies the agricultural uses proposed by this application and the supporting documentation identifies the particular crops and cattle.
Having regard to all of the evidence I am satisfied that the agricultural high school uniquely intertwines the practical and academic on one site. And while I agree with Ms Spithill, development of an agricultural high school is not of itself an agricultural use; I cannot ignore the evidence that this school needs to be constructed on prime agricultural land in order to achieve the desired integration of learning and practical agricultural activities anticipated by the development application.
I am satisfied on the evidence of JN that the school buildings needs to be integrated with the agricultural land so that the students can work the land as part of their studies. His evidence is consistent with the planning assessment report lodged with the application by Ingham Planning (exhibit 2 vol1 tab3 p17) which states that "... It is not viable or workable to develop an agricultural college on low quality agricultural land and provide the range of agricultural training that is necessary".
A separation of the agricultural use on prime land and the school buildings on another site as submitted by the council is not this application. Clause 6 invites a consideration of the subject application not a different application as the council submits. And in any event even if it were relevant there is no evidence of a viable or workable alternative site that is part prime agricultural and part non-prime agricultural land of the size and capacity proposed in this application within the SREP 8 area (including the Wyong LGA). Or, for that matter, some other site that is not prime agricultural land covered by the SREPP, which is a viable or workable alternative to this site for this working farm school development. The evidence is that a large part of the site will be used for agricultural activities (irrespective of whether the development has a onsite or pump out sewerage system)
After a careful consideration of all the evidence from Mr Docking and JN and Ms Spithill including the objectors' oral and written submissions I am satisfied that this development needs to be on prime agricultural land and that there is no viable or workable alternative sites not being prime agricultural land available for the carrying out of this school development in the Gosford or Wyong LGAs covered by the SREP 8 cl 6(5).
Furthermore, I am satisfied that the carrying out that development will not adversely affect the present or future use of other prime agricultural land for the purpose of agriculture: cl 6(2)(b). The concept/master plan identifies 30 m buffer zones to the northern boundary to adequately separate the land uses and, there is already a significant native vegetation along that boundary. And where that planting is deficient there is new planting proposed to a height of at least 20 m when full grown (p 22 Truelove report Tab 16.4 Exhibit A). In my assessment the design of the proposal will shield the school from spray drift from the current adjoining agricultural land use.
In my assessment the surrounding sites will continue to be used as they are currently used if this school development is approved and, in my assessment of the evidence (including that taken at the view from the adjoining objectors and after reading their written submissions) the use of prime agricultural land for the purpose of agriculture will not be adversely affected by this development if approved and constructed. The built form is modest and discrete and essentially sits within the footprint of the existing farmhouses that will be demolished if the school use is approved. The agricultural fields and dam identified in exhibit F are common features on prime agricultural land and their use in this development will not have any adverse affect on the present or future use of other prime agricultural land for the purpose of agriculture. I am satisfied that this agricultural school will not have the adverse affect as discussed in cl 6(2)(b) based on the evidence of the applicant's planner.
The council's submissions in respect of cl 6(5) are made on two bases; the first is that I cannot be satisfied because the applicant has not provided sufficient information for me to be satisfied and, the second requires changing the development into a different proposal.
I do not accept that cl 6(5) contemplates changing the development into a different configuration by splitting it up over two sites or on less land (Exhibit 8 p 2) in order to determine if the subject development could be carried out on alternate viable sites or workable alternative sites under the SREP not being prime agricultural land. More particularly, cl 6 plainly asks can this development be located "...on other land...(etc)." And in answering that question I accept JN's evidence that the criteria for site selection for this development was constrained in that the land needed to be a particular size (around 10 hectares) with certain site characteristics including being Class 2 or Class 3 Prime Agricultural land to allow for the agricultural activities proposed by the master plan.
I do not accept that there has been no investigation by the applicant into alternate sites for this development in either the Gosford and Wyong local government areas under the SREP on land other than prime agricultural land. The planning evidence from JN demonstrates those investigations. The fact that no other site was located does equate with to no investigations. And based on my understanding of the evidence neither party has been able to nominate a particular site as a viable or workable alternative for this particular development.
For the stated reasons I believe that I have the jurisdiction to grant consent to this application.
Is the development consistent with the relevant zone objectives under the IDO 122 (question 2)
As noted above the site is zoned 1(a) Rural (Agricultural) under Interim Development Order No. 122 and the development is permissible with consent.
However, the Council contends that the development is not an agricultural use and, therefore, it is inconsistent with the zone objectives and cl 5(3) of IDO 122 precludes the Court from granting a consent.
Clause 5 (3) provides:
"The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development."
The zone objectives are set out below:
Objectives of the zone
The objectives of Zone No. 1(a) are:
(a) to identify and provide suitable land for agricultural use; and
(b) to protect the agricultural potential of land identified as suitable for agricultural use; and
(c) to prevent the fragmentation of prime agricultural land; and
(d) to enable uses which are complementary to, and compatible with, the use of land for agriculture; and
(e) to protect the rural landscape quality of the area; and
(f) to protect water catchments, water quality, soil conditions, and important eco-systems such as streams, estuaries, and wetlands, from inappropriate development and land management practices.
Clause 5(3) requires me to take into consideration the "objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development" before the grant of development consent. There is no requirement for consistency with each of the objectives before granting consent.
Relevantly, there are a range of permissible uses within the 1(a) Rural (Agricultural) zone including: childcare centres, extractive industries, horse establishments, intensive agriculture, rural industries, places of public worship, rural tourist facilities and veterinary hospitals. Not all of those permissible uses are consistent with all of the zone objectives. For example a place of worship may not be consistent with (a) to identify and provide suitable land for agricultural use but it is a permissible use.
I also understand the planning evidence that the school cannot be characterised as an agricultural use but in saying that I accept the applicant's planner's evidence that the development requires prime agricultural land to operate as a "working farm" in accordance with the concept plan in exhibit F. Relevantly Mr Docking and Mr Truelove, the agricultural planners agree. They told me during their concurrent that the proposed agricultural uses identified by the applicant could only be carried out on prime agricultural land of a class 2 and 3 classification (transcript 8/5/2013 p177 at line 20).
I also accept the applicant's evidence that this development provides for an intertwining of the classroom and agricultural activities on one site. This model of education involving both practical training with the academic is according to Mr Docking desirable and there are few such facilities in the state. And having regard to this model of a working farm school I accept JN's evidence that the development although properly characterised as an "educational establishment" that overwhelming the majority of the development site will be used for agriculture. In fact, if the pump out system is installed and the onsite sewerage treatment land is available for either grazing or cropping then Mr Docking told the Court that up to 82% of the 25.5 hectares of the land would be retained in agricultural production. (Transcript dated 8/5/2013 at p172 line 30). He also said that it was a good idea to place the school buildings on that part of the site presently occupied by the existing dwellings (the class 3 Agricultural land) because that reduces the impact of the built structures on the higher quality class 2 Agricultural land which is left available for agricultural uses.
After having considered this development's consistency with the zone objectives and the objectives of the Local Government Act 1993 relating to ecologically sustainable development I see no reason not to grant consent to this school development. There will be no fragmentation of agricultural use by an approval of this development because the adjoining land is in the same ownership. An approval of the development will mean that about 80% of the site will be used for agriculture. And according to the evidence, the criteria used by the applicant for the establishment of this agricultural school was "an area of land of at least 7 to 10 hectares of good agricultural land suitable for intensive agriculture, including regular cropping, such land would need to comprise Agricultural Class 2 and better quality Agricultural Class 3 land" per Statement of Evidence of JN (exhibit C). With that in mind the activities proposed by the school must be considered similar in nature to the agricultural activities carried out on the surrounding farms.
For completeness I note that Clause 5 (4) of the IDP 122 requires the Court to take into consideration the "character of the development site and surrounding area and after such consideration there is no evidence before me to suggest that the development will not fit into the character of the area.
Draft Gosford LEP 2009 - (question 3)
Under the draft LEP the site is zone RU1 and "education establishments" are a prohibited use.
The planners agree that the draft LEP is neither certain or imminent (Joint report exhibit 8 p5). Despite that evidence, however, at the conclusion of the hearing the council tendered a letter from the Interim Director of Environmental Planning dated 20 June 2013 (exhibit 22), which it said, elevates the weight of the draft LEP in my assessment of this application. It contends based on the contents of the letter that the LEP is now certain so far as the proposed zoning of the subject land and that a school will be prohibited under that instrument.
After a consideration of the contents of the letter from the department I do not agree. As far as I am concerned the exhibited draft LEP does not have determinative weight in this case. The objectives of the RU 1 zone (which I am required to consider under cl 2.3 of the Draft LEP) are largely reflective of the objectives of the 1(a) zone under the IDO and I have already considered those objectives against the evidence and found they support an approval of this application. I also note that the draft has a savings provision in cl1.8A that would have the effect of saving this application in the event of gazettal of the draft LEP before the Court's determination.
After a consideration of the draft LEP as required under s79C: Terrace Towers Holdings v Sutherland Shire Council (2003) 129 LGERA 195 at [46] I have determined that its provisions are not a basis for refusal of this application.
Cl 11 SREP - (question 3)
The applicant submits that cl 11 of SREP 8 is relevant in my assessment of this class 1 application. The relevant submissions are at p31 and 32 of the Council's written submissions (CWS).
The council refers me to the aims of the SREP in cll 2(a) and (b) which I have had regard to already in my assessment of this application.
I am then referred to cl 11, which starts with the words "...In preparing any draft local environmental plan applying to land to which this plan applies the council should...". Thereafter, the council submits that the development is not consistent with the aims of the SREP. The draft LEP will prohibit the proposed development. And such prohibition is consistent with and in accordance with the direction expressly provided for in cl 11 of SREP8.
At this point I am lost. As far as I understand cl 11 it is directed to the council's making of a draft LEP and the objectives the council needs to have regard to for any development allowed by the plan. In my assessment cl 11 is not a matter relevant to my assessment of the development application in this appeal.
State Environmental Planning Policy (Infrastructure) 2007 - (question 3)
I agree with the applicant that the only relevance of the SEPP (infrastructure) is that by operation of cl 32 the Court is to take into account relevant standards in certain government publications. In this case those publications tendered (exhibit J) deal with matters of detail in the construction of an educational establishment.
After a consideration of the documents in exhibit J I am satisfied that the development is capable of being constructed in accordance with the standards required by them and invite the Council to incorporate any relevant matter in the draft conditions of consent.
State Environmental Planning policy No 19 - Bushland in Urban Areas - (question 3)
There is no issue under this SEPP based on the final evidence of the ecologists.
Water Supply Catchment Area Development Policy (exhibit 2 volume 3 tab 9 - (question 3)
The evidence is that the development is within the Mangrove Weir Water Catchment and the standard set by the State Environmental planning Policy (Sydney Drinking Water Catchment 2011) applies to this development (exhibit K). The council policy provides:
": The following land uses and development will be required to provide detailed information to substantiate zero impact on the quality of the Central Coast water supply. "
It applies to educational establishments hence this development. However, the Policy anticipates that uses as varied as caravan parks, hospital, hotels industries, pig breeding rural industries and service stations can occur in the catchment provided zero impact is complied with. The water experts in this case agree that both the onsite and pump out systems can be engineered to comply with the zero impact requirements in the policy.
Dr Deere does not agree with the policy and contends that system failure is inevitable and in that circumstance the policy requirement is breached.
Dr Deere is of the opinion that permitting the development will not achieve a zero impact on the catchment because it will be the first of a cumulative impact. However, if the council is correct in its submission that the draft LEP will be gazetted in 2014 to prohibit schools in the R1 zone then a cumulative impact from schools in this area is highly unlikely. The council's assessing officer agrees in her report to the JRPP (exhibit 2 tab 10)
I do not accept as Dr Deere asserts that "...the inevitable adverse cumulative impact that would follow from the erroneous decision to approve this development would be reason enough to reject it...precedent would demand that the catchment would be one to numerous similar high risk development to be approved thereafter, with no remaining reasonable grounds for refusal." exhibit 6 p 10
Nor do I accept the submission of the council in this case that "if the court were to approve this development, the council would be powerless to resist other developments where its engineers assert that the system is failsafe. The precedent is set by the Court's approval".
Each development application must be assessed against the controls applicable on its merits Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 66 NSWLR 177
The council submits based on the evidence of Dr Deere that the zero impact policy alone is not enough and that the Court should make policy, which takes account of design failure. However, I agree with the applicant that it is not the Court's role in this development application appeal to make policy rather to apply it. The Court cannot anticipate future development and or system failure events. Nor can it apply policy that does not exist.
The evidence is clear that the sewerage systems designed by Mr Gawn and endorsed by Dr Martins on the evidence of Dr Deere will achieve by design zero impact. Furthermore, Dr Martens' evidence is that the onsite sewerage system presents a straight froward and robust means of managing wastewater onsite for the development. He has assessed it against the Council's Policy D6.41 6 - Water Supply Catchment Area Development Policy and found it to be acceptable. The process is described in Figure 1.
Dr Martens has also assessed the alternative onsite sewerage pump out system including a septic tank for onsite treatment and an effluent collection well for routine pump out in exhibit M. He concludes that it also has been designed in accord with the relevant guidelines and achieves compliance with the council's Policy. The tank will be emptied 3 times a week for duration of 30 to 40 minutes by an approved council pump out contractor and regulated by the council.
Dr Martens is a highly qualified and experienced engineer involved in the design, installation inspection auditing and risk management of both systems proposed in this case.
Dr Deere is highly qualified in his area of expertise of water microbiology but has never designed an onsite sewerage system. In the circumstances I prefer the evidence of Dr Martens because of his extensive experience in the design and construction and monitoring of sewerage treatment systems for schools and other development.
Dr Deere's evidence is that the system will not operate as designed and the system will fail and there is a risk of contamination of the water supply. His concern is about the management of the system. However, the Court must assume that the applicant will abide by the conditions of consent imposed including licensing requirements and management by qualified contractors and council inspections.
After a consideration of all the evidence it appears that the pump out system offers a slightly better outcome in the event of system failure. All of the experts agree it achieves the best outcome in the event of system failure. Accordingly, on that basis I have decided that the pump out system should be incorporated into the development. It overcomes any low and acceptable risk as assessed by Dr Martens in respect of the onsite system and satisfies the ecologists' concerns as identified earlier about the EEC and natural bushland along the western and southern boundaries of the site including a perched Swamp Community that it considers to be an endangered ecological community, which could be susceptible to any significant increase in nutrient.
The pump out system will meet the council policy criteria of zero impact to ensure that the development will not have an adverse impact on the catchment and any ECC. It will also will free up a larger area of the site for agricultural use.
Central Coast regional Strategy
The Central Coast Regional Strategy is the NSW governments' long-term land use plan for the region that covers Gosford and Wyong. It contains regional policies and actions designed for the area to cater for growth and housing and employment.
The strategy also seeks to protect the Mangrove Weir Drinking water catchment from inappropriate development. The council contends that this development is inconsistent with the objectives of the strategy.
However, in my assessment of the evidence this small agricultural school for 100 senior students does not undermine the long-term objectives of the strategy. It does not fragment the agricultural land and, for the reasons stated earlier, it maintains an agricultural use for the majority of the site. The land will produce food consistent with the strategies' production of food producing land. The school intends to sell its produce to the local market.
The sewerage system proposed is designed to have zero impact on the Mangrove Weir Drinking water catchment so it will be consistent with the strategy in that regard.
Objector evidence
I understand that some of the local community are concerned about change however; in my assessment their objections do not provide a basis for a refusal of this application.
In respect of the assertion that the school will fail to integrate with the local community there is no evidence of that before the Court. In fact there is evidence to the contrary given that the school intends to sell its produce at the local market and take students from the local area. Nor is there any evidence that the school use will impact on the rural farming economy as claimed by some residents. At best the school will contribute local produce to the local community market stall it is not intending to be a commercial competitor for other rural uses in the area.
The council has raised no issue about the design of the school buildings and there is no evidence to support any planning justification for a refusal of this application on that basis. The school is small and will in my assessment of the evidence serve the greater public interest by providing a education establishment with a focus on agricultural studies. The draft conditions proposed by the council in exhibit 25 should be imposed to regulate the development.
For the above reasons I have decided to approve the development subject to the council's conditions in exhibit 25. Accordingly, the Court orders:
(1) The appeal is upheld.
(2) Development consent is granted for the proposed educational establishment (Senior Agricultural School) on Lot 87 DP 755252 being land at 2964 Wisemans Ferry Road, Mangrove Mountain in accordance with concept plan exhibit F, subject to conditions of consent in exhibit 25 as amended to incorporate the proposed pump out system.
(3) The council is directed to forward conditions electronically to the Court with 21 days.
(4) The exhibits are returned apart from exhibit 1, 25 and F.
Susan Dixon
Commissioner of the Court
EXHIBIT F - CONCEPT PLAN
Decision last updated: 23 January 2014
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