Australand v Sutherland Shire Council

[2004] NSWLEC 9

Land and Environment Court

of New South Wales

CITATION:	Australand v Sutherland Shire Council [2004] NSWLEC 9
PARTIES:	Australand Holdings Ltd Applicant Sutherland Shire Council Respondent
FILE NUMBER(S):	10123 and ; 10124 of 2000
CORAM:	Roseth SC - Hoffman C
KEY ISSUES:	Development Application - Planning Instruments - Subdivision :- Green and Golden Bell Frog vulnerable ecological communities groundwater quality groundwater dependent ecosystems revegetation of mobile dune system
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Threatened Species Protection Act 1995
CASES CITED:
DATES OF HEARING:	14/10/2003 to 20/10/2003, 22/10/2003 to 31/10/2003, 28/11/2003, 05/12/2003 and 24/12/2003
DATE OF JUDGMENT:	01/23/2004
LEGAL REPRESENTATIVES:	Applicant: Mr B Preston SC Ms S Pritchard, barrister instructed by G Cummins of Cowley Hearne Lawyers Respondent: Mr T Robertson SC Mr P Larkin, barrister instructed by Mr B Woolf of Woolf Associates

JUDGMENT:

- 2 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10123 and 10124 of 2000

Roseth SC
Hoffman C

23 January 2004

Australand Holdings Ltd

Applicant
v

Sutherland Shire Council

Respondent

Judgment

Introduction

1 These are appeals against the deemed refusal by Sutherland Shire Council (the council) of two development applications in respect of lot 113 DP 777967, known as 422-450 Captain Cook Drive, Kurnell. Appeal No 10123 of 2000 relates to a development application lodged with the council in October 1999 for bulk earthworks (the bulk earthworks application). Appeal No 10124 of 2000 relates to a development application lodged in June 1999 for subdivision as an industrial/business park (the subdivision application).

2 Central to the dispute between the parties was the difference of opinion about the appropriate use of the site. The council wants to see the site left largely undeveloped and used for recreation. The many objectors to the proposal, some of whom gave evidence in Court, reflected the council’s vision for the future of the site. The applicant, on the other hand, proposes to develop one-third of the site for an industrial park and to rehabilitate two-thirds as a natural conservation area, a large part of which is dedicated for the breeding of the threatened species of Green and Golden Bell Frog.

3 Sydney Regional Environmental Plan 17, which is the responsibility not of the council but the State government, zones the site 7(b), a zone that allows, among numerous other land uses, the development of the site as an industrial park. The zoning has been in place since 1989. There was no indication before the Court that it might change.

4 The four major issues in the case were the impact on groundwater dependent ecosystems, the Green and Golden Bell Frog, the revegetation of the mobile Cronulla Sand Dune and the appearance of the development from far and near vantage points. The Court was satisfied that, subject to appropriate conditions, the proposal would not have an adverse impact on the ponds and wetlands on and near the site. It accepted that the proposal was likely to be successful in preserving the frog. Part of the dune was vegetated with a remnant forest dating back to before Captain Cook and apparently all the Kurnell dunes were vegetated with similar forest in the centuries preceding European settlement. The Court also accepted that if the Cronulla dune is not revegetated, it is likely to swallow up the ponds and vegetation on the site. Finally, it found that, while visible from a few locations, the proposal would be screened by topography and vegetation. It would not appear visually dominant.

5 For these reasons the Court approved the development subject to conditions safeguarding the environment.

The site

6 The site has an irregular shape, measuring 350-550m wide and 1,550m long, with an area of 62ha. Its elevation ranges from 4m AHD near the low point along Captain Cook Drive to around 30-35m AHD at the crest of the dune along the southeast boundary. Part of its north boundary is common with the Cronulla Sewage Treatment Plant (STP) owned by the Sydney Water Corporation. The remainder of the north and the whole of the west boundary is common with a property owned by the Breen family and the Kurnell Landfill Company. The properties are still being mined for construction sand and used as a waste disposal site, although parts are under rehabilitation.

7 To the southeast the site adjoins the Wanda Reserve (also called the Lucas Reserve), which is a rehabilitated foredune. To the south the site adjoins the Cronulla High School and another property in the Breen family’s ownership that has been mined for construction sand and is now vacant, except for “stored” landfill near the south boundary of the site. The land on the west side of Captain Cook Drive has been mined and is now zoned as National Park and Nature Reserve. To the west and northwest are the Woolooware Bay Wetlands and the Towra Point Nature Reserve.

8 Before sandmining the site was a mobile sand dune, with an area of vegetation in the northeast portion, referred to as Kurnell Dune Forest. Following four decades of sand mining, most of the site has been modified, apart from the vegetated portion and the unmined part of the dune towards the north. The west portion is generally flatter than the east. There are six ponds on the site, the result of past sand mining. They are referred to, from north to south as Ponds 0, 1, 2, 3, 4 and 5.

The proposal

9 The bulk earthworks application seeks consent for the preparation of the site for an industrial/business park and land set aside for conservation and recreation. The subdivision application seeks consent for subdivision into 28 allotments. Twenty-six of the allotments are intended for industrial use. They cover an area of 22ha, or about 36% of the site. The applicant does not propose buildings or uses for the allotments. It suggests that further development applications be made when the uses become known.

10 Lot 27 is for drainage and the breeding of the Green and Golden Bell Frog (GGBF). It has an area of 7ha. The applicant proposes to create a series of stormwater treatment basins, referred to as Pond 6, on lot 27. It proposes six satellite ponds for the purpose of breeding the GGBF. Lot 28 is for recreation, GGBF habitat, dune stabilisation and conservation. It has an area of 32ha. The total area for recreation and conservation is thus 39ha, or about 64% of the site.

11 The applicant seeks also to provide water, sewer and drainage services to the subdivision and to create public roads within the area of lots 1-26.

Significant events affecting the site since 1989

12 On 30 June 1989 Sydney Regional Environmental Plan 17 – Kurnell Peninsula (SREP 17) came into effect. It zoned the major part (87%) of the site 7(b) – Special Development and the remainder 6(b) – Public Recreation.

13 In February 1991 the council granted consent to an application for the temporary use of the south portion of the site as a golf driving range. A further consent was given in July 1993 for this use. The use is in operation.

14 In 1996 the applicant lodged an application for a tourist resort and a golf course. After the council failed to determine the application, the applicant lodged an appeal. In June 1997 the Court granted a consent that has since lapsed.

15 In June 1999 the applicant lodged a development application for subdivision of the site for an industrial/business park. In November 1999 it lodged an application for bulk earthworks to prepare the site for subdivision. In February 2000 the applicant lodged appeals against the deemed refusal of both applications.

16 In July 2000 the Minister for Urban Affairs and Planning announced a review of SREP 17. The media release containing the announcement appeared to favour residential over industrial development. It referred to a residential proposal by Australand and foreshadowed that the Minister would become the consent authority for the site.

17 In September 2001 the Minister received a consultant report by Ms Helen Sjoquist titled Review of Land Uses Sydney Regional Environmental Plan No 17 (SREP 17. In the same month the Healthy Rivers Commission published the final report of its Public Inquiry into the Georges River/Botany Bay System.

18 In September 2002 the Minister announced a comprehensive study of the Kurnell Peninsula and review of SREP 17. The media release suggested that the study would be completed by late 2003 and that it would create a comprehensive regional blueprint to guide all future land use on the Kurnell peninsula and the surrounding catchment. The study has since been called the Botany Bay Strategy. At the time of hearing it has not been released.

19 In February 2003 the council exhibited its draft Local Environmental Plan 2003 (draft LEP 2003). The draft Plan zoned the site Active Recreation. In September 2003, however, the draft Plan was re-exhibited showing the site under the control of SREP 17.

20 In February 2003 the Heritage Council of NSW announced its intention to list the Cronulla Sand Dune and Wanda Beach Coastal Landscape on the State heritage register. In September 2003 the listing, which includes the mobile dune and Pond 3 on the site, was gazetted.

21 It is clear from the above history that SREP 17 has been considered again and again since its birth in 1989. The fact that the zoning of the subject land, and the uses that are permissible under it, has remained unaltered for 14 years suggests to us that it must given significant weight in our decision.

Relevant planning instruments, policies and studies

22 As mentioned above, SREP 17 zones the majority of the site 7(b). An industrial park is a permissible use in the zone.

23 The Threatened Species Protection Act 1995 (the TSP Act) identifies, among other things, threatened fauna and flora. It lists, among other things, the Green and Golden Bell Frog (GGBF) as a threatened species and the Kurnell Dune Forest (KDF) and Sydney Freshwater Wetland (SFW) as endangered ecological communities.

24 The Sutherland Local Environmental Plan 2000 excludes the site from the zoning map. Draft LEP2003 also excludes the site from the zoning map, however it includes it in a Structure Plan, which describes the land use of the site as Special Uses and covers it with a stipple indicating Greenweb. Neither party suggested that the draft plan was either imminent or certain. If the notation Greenweb indicates a prohibition on development, then the Structure Plan (and hence draft LEP 2003) would to that extent be inconsistent with SREP 17.

The issues

25 The council submitted a Statement of Issues containing 15 issues, which were discussed during the hearing. The following emerged as the salient issues.

26 The first issue relates to cl 25 of SREP 17. The relevant part of this clause requires that arrangements be made that are satisfactory to the DIPNR (as successor to the Department of Water Resources) for the proper utilisation and protection of groundwater, where surface water is discharged as waste water into bores, unlined pits, channels or excavations.

27 The second issue relates to the management and monitoring (pre and post-development) of stormwater from the proposal, its impact on groundwater and the ecology of wetlands on the site and in nearby areas including Towra Lake Nature Reserve. The parties disagreed on whether the proposal should maintain the existing quality of groundwater at the point of discharge, or achieve an appropriate quality at the nearest groundwater dependent ecosystem.

28 The third issue relates to the proposal’s impact on the threatened species of the GGBF and the endangered ecological communities of KDF and SFW. The parties agreed on the presence of GGBF on the site, though they disagreed on the proposal’s impact on it. They also agreed that there was KDF on the site and that this was not under threat from the proposal. While not agreeing, the applicant was prepared to concede the presence of SFW.

29 The fourth issue relates to the proposed stabilisation and revegetation of the mobile Cronulla Dune on the site. The dune is part of the Cronulla Sand Dune and Wanda Beach Coastal Landscape listed in September 2003 on the State heritage register. The council contends that revegetation would have an unacceptable impact on the heritage significance of the dune and that therefore the dune should be left untouched. It further contends that the accelerated revegetation of the dune would import to the site fertilisers and other materials that would endanger the GGBF. If revegetation did occur, it should be a longer process without fertilisers or compost.

30 The fifth issue relates to the visual impact of the proposal from significant viewing points. The council contends that the proposed development would diminish the scenic value of the Kurnell Peninsula, as seen from many places within and outside the Shire. The visual impact would also diminish the heritage significance of the Cronulla Dune and Wanda Reserve.

31 The sixth issue relates to traffic. The parties reached agreement on this issue.

32 The seventh issue relates to the use of the site. The council contends that an industrial/business park is inappropriate and would have adverse impact on other retail and business areas in Sutherland. According to the council, the development would result in net community detriment. In addition the council contends that the details of the proposed uses are not sufficiently known to allow the application to be determined.

33 The eighth issue relates to cl 24(2) of SREP 17. That subclause requires, in respect of commercial premises, retail activities or holiday accommodation, a 400m buffer from the existing treatment structures of the Cronulla Sewage Treatment works or from the northern boundary of the treatment works site. The parties disagreed on whether the subclause applies to this application. If it does apply a further question arose on where the 400m buffer falls.

34 The ninth issue relates to concerns raised by public authorities and objectors. Numerous government departments have commented as have members of the local community.

35 The tenth issue relates to the relevance of the Botany Bay Strategy. The Council contends that the applications should not be determined until the Strategy is finalised because any approval may be inconsistent with the future planning for the area.

36 The eleventh issue relates to the conditions of consent. The parties disagreed on whether it was possible to formulate conditions to avoid unacceptable environmental impacts.

37 The twelfth issue relates to the aims and objectives of SREP 17. The council contends that the proposal is inconsistent with cls 2(1)(a), 2(1)(c), 2(1)(d), 2(2)(d), 2(2)(h) and 9(3), as well as with objectives (b), (c), (d) and (e) of the 7(b) zone.

Satisfactory arrangements for the protection of groundwater

38 Clause 25 of SREP 17 applies to the drainage arrangements. In a letter of 1 December 2003 to this Court, the General Manager, Legal, of DIPNR wrote:

…I advise that the Department of Infrastructure Planning and Natural Resources, being the relevant agency for the purposes of clause 25 of the Sydney Regional Environmental Plan No 17 – Kurnell Peninsula, has considered the development proposed by Australand Holdings Ltd, the subject of the appeal before the Court, and has made arrangements in terms of the matters set out in the schedules hereunder. The Department is satisfied that arrangement for the proper utilisation and protection of the ground water system beneath the lands proposed to be developed have been made.

39 The letter was accompanied by two schedules. Schedule 1 lists the arrangements between the applicant and DIPNR. These are included in the conditions of consent. Schedule 2 lists potentially contaminating light industrial and commercial uses that will not be permissible on the subject land. These are also included in the conditions of consent.

40 Given the above letter and the inclusion of the schedules in the conditions of consent, we conclude that cl 25 of SREP 17 has been satisfied and is not an impediment to the approval of the application.

Impact on groundwater
The evidence

41 The ponds created by sandmining have now filled with rain and groundwater and flora and fauna have established themselves in and around them since 1990. Though recent in origin, they are now groundwater dependent ecosystems. The applicant proposes to create additional ponds for frog breeding, which will also be groundwater-dependent ecosystems. In addition, there are groundwater dependent ecosystems off-site, in particular the Towra Point Nature Reserve, including the Woolooware Bay Wetlands. The existing quality of groundwater on the site was tested first in 1999 and again in 2003, shortly before the hearing. The quality had improved between the tests and was now said to be potable by one expert, and good enough to be used for industrial irrigation by the other experts.

42 The applicant proposes the following treatment train for stormwater runoff:

· Gross Pollutant Traps (GPTs)

· discharge into pre-treatment sedimentation ponds

· macrophyte zones

· central infiltration pond of 1.3ha.

43 The council’s experts on this aspect were Dr C Jewell, a hydrologist, and Dr D Martens, an environmental engineer. The applicant’s experts were Dr B Phillips, a civil engineer, Dr I Swane, an environmental engineer, and Dr R Evans, a hydrologist. Dr Martens, Dr Phillips and Dr Swane produced a joint report that came to the Court as Exhibit MM. (There were also earlier joint reports that were, however, of no assistance to the Court.) One (rare) point of agreement between the experts was that Event Mean Concentrations (EMCs) are total values and comprise dissolved and adsorbed fractions.

44 The experts disagreed on the likely efficiency of GPTs. Dr Martens estimated it at 5% for Suspended Solids (SS), Total Nitrogen (TN), Total Phosphorus (TP) and metals. Dr Phillips estimated it at 80% for SS, 33% for TN and TP; and 40% for metals. This is to say that the applicant’s experts estimated the efficiency to be 16 times as high as Dr Martens.

45 In relation to the wetland section of the sedimentation pond, they disagreed on the method of calculating pollutant removal. Dr Phillips relied not only on the assessment provided by the publication Constructed Wetland Manual (which he considered simplistic), but also on XP-AQUALM water quality modelling. Dr Martens had not undertaken modelling. The experts disagreed on the estimation of Hydraulic Residence Time (HRT) in the wetland section of the sedimentation ponds. Dr Martens estimated it at five days, while Dr Phillips estimated it at 17.5-19.5 days. It was common ground that in major storm events, the volume of stormwater would result in very short residence time for purification purposes. In extreme storms there was an overland flow from Pond 6 across Captain Cook Drive directly to the Woolooware Wetlands. There were no estimates for these events. It appears that dilution would be sufficient to avoid unacceptable impacts.

46 For normal events, the experts disagreed on the pollutant retention curves that should be used. Dr Martens considered the use of the average curve appropriate, while Dr Phillips opted for the high curve. Dr Martens thought that the TP retention curve was representative of metals retention, while Dr Phillips thought that the SS retention curve should be used for metals.

47 With regard to the Infiltration Pond, all three experts agreed that adsorbed and dissolved contaminants not captured by the upstream treatment train will be discharged to the infiltration pond. They also agreed that the primary mechanism of transport of contaminants to the groundwater would be in a dissolved form. They disagreed on the long-term dissolved fraction in the water column discharged to groundwater. Dr Martens considered that dissolved contaminants discharged to groundwater will comprise around 20% of metals and phosphorus remobilised from sediment as well as inflow dissolved concentrations. He also considered that sediment stores would increase over time unless they are removed through maintenance at regular intervals forever into the future. Dr Phillips and Dr Swane considered that around 10% of total metals will be in a dissolved form and be discharged to groundwater.

48 With regard to the dispersal of contaminants, the experts agreed that concentrations in groundwater would decrease with distance from the injection point, ie Pond 6, if existing groundwater concentrations were lower than the concentrations at injection. However, Dr Martens disagreed that contaminant dispersal from the site was a valid approach for assessing discharges from Pond 6. He considered that the discharge from Pond 6 to groundwater should meet the water quality objectives at the point of discharge. In Dr Swane’s opinion, dispersal of contaminants in the discharges from Pond 6 would lead to a ten-fold reduction at a distance of 250-300m from Pond 6. Dr Phillips thought (based on advice from Dr Evans) that dispersal of contaminants would lead to a ten-fold decrease at Woolooware Bay Wetlands and a five-fold decrease at Pond 3.

49 With regard to the receiving waters, the experts disagreed what should be regarded as the receiving waters. Dr Martens considered that the groundwater at Pond 6 was the receiving water. Dr Phillips and Dr Swane considered that Woolooware Bay Wetlands and Pond 3 should be considered the receiving waters.

50 With regard to environmental values, the experts disagreed. Dr Martens considered that the environmental values comprised the protection of groundwater systems, quite apart from the protection of aquatic systems in receiving waters (with which all experts agreed).

51 With regard to the applicable guidelines, the experts disagreed. Dr Martens considered that either ANZECC 2000 guideline values or existing groundwater quality applied, whichever was the lower concentration. In his opinion, the NSW Department of Land and Water Conservation Groundwater Protection Policy applied to environmental values. Dr Phillips and Dr Swane considered the applicable criteria were the ANZECC 2000 guidelines, which define the environmental values to be protected.

52 Dr Jewell, who did not attend the conference from which Exhibit MM emerged, gave evidence in Court to the effect that Pond 6 would need to be cleaned and maintained throughout the life of the project. Cleaning would require the removal of the gabions along the south wall. Dr Evans responded that the gabions are located above the water level and would not be polluted. The bottom of Pond 6 would be graded up to normal water level at the edge and the gabions would be above that level. He agreed that the development would decrease the recharge to groundwater. However, the creation of Pond 6 would counteract this decrease. Even without Pond 6, the difference would be only in the order of 20mm. He agreed that the development could lead to the altering of some of the chemical parameters of the groundwater, but this would be so minor that it would not affect any of the groundwater-dependent ecosystems on and off the site.

Findings

53 Two questions of approach arise out of the evidence:

· Where should the water quality objective be measured: at Pond 6, Pond 3 or Woolooware Bay? In our opinion the critical points are Pond 3 and Woolooware Bay. However, Pond 3 is closer to the infiltration basin of Pond 6 than Woolooware Bay, so it should be the critical point.

· Should the water quality objective be determined by the ANZECC 2000 guidelines or by the existing concentration of contaminants in the groundwater when the latter is lower? In our opinion, the water quality objective should be determined by the ANZECC 2000 guidelines.

54 Our reasons for reaching the above conclusions are as follows. We accept that groundwater is a resource that should be valued. We note that Principle 1 of the Groundwater-dependent ecosystems management principles in the NSW State Groundwater Dependent Ecosystems Policy states that:

The scientific, ecological, aesthetic and economic values of groundwater-dependent ecosystems, and how threats to them may be avoided, should be identified and action taken to ensure that the most vulnerable and the most valuable ecosystems are protected.

55 Principle 5 of Groundwater-dependent ecosystems management principles in the NSW State Groundwater Dependent Ecosystems Policy states that

Planning, approval and management of developments, water use and land use activities should aim to minimise adverse impacts on groundwater-dependent ecosystems.

56 Applying these principles to the subject proposal, it is clear that the concern is with the impact on the groundwater-dependent ecosystems, rather than with the quality of the groundwater per se. It seems to us that where a planning instrument (in particular an instrument initiated by the same State government that is the author of the above policy) envisages urbanisation, and a proposal takes all practicable precautions to reduce the contaminants in the stormwater discharge, the test should be the impact on ecosystems rather than on groundwater quality. The nearest ecosystem to the infiltration pond is Pond 3.

57 We note that, in response to a draft condition presented to the applicant during the hearing, the applicant revised the plans to indicate frog-breeding ponds that are closer to the infiltration pond than Pond 3. There is no reason, however, why the breeding-ponds cannot be located at least as far from the infiltration pond as Pond 3 is located from it. A condition of consent requires this.

58 In regard to the appropriate criterion for discharging into groundwater, we think that Dr Martens is placing too hard a test on development by rejecting the ANZECC 2000 guidelines where the existing groundwater has a lower concentration of contaminants. We suspect that few urban developments, under which the groundwater happens to be pristine, would meet his test. The ANZECC 2000 guidelines are widely recognised and used as providing acceptable criteria for discharging to water-dependent ecosystems. We see no reason to apply a tougher test than is accepted for most urban development in Australia and New Zealand.

59 Dr Martens, Dr Phillips and Dr Swane agreed that concentrations in groundwater will decrease with distance from the injection point. Dr Phillips estimated the dilution at Pond 3 to be five-fold, while Dr Swane estimated it to be ten-fold. They both agreed that the dilution at Woolooware Bay would be ten-fold. Since Dr Martens considered the dilution at Pond 3 to be an irrelevant test, he did not offer an estimate. Taking the more conservative estimate of Dr Phillips, it is clear that that ANZECC Guidelines in relation to groundwater quality are met both at Pond 3 and at Woolooware Bay.

60 We cannot complete our findings on the issue of groundwater quality without turning to the significant and numerous differences between the experts retained by the parties on almost every detail of the proposal. The fact that one expert said that the GPTs proposed to be used in the development would work at 5% efficiency, while the other thought they would work at 80% efficiency, made our task more difficult than it should have been. In our opinion, the experts’ inability to come closer in their positions on factual matters reflected poorly on them.

61 It is neither necessary nor useful for us to reach a finding on every disagreement between the experts, eg on the size of suspended solids in urban runoff, on the appropriate way to measure the concentration of metals, on the appropriate pollutant removal curve, and whether dissolved pollutants would or would not be adsorbed by suspended particles. On balance we prefer the evidence of the applicant’s experts. We note that, whatever their efficiency, GPTs are in use in the Sutherland Shire, and in most other local government areas. We note that the treatment ponds and the infiltration pond proposed in this development are larger in relation to the area they serve than at Serenity Cove, a nearby industrial area. We take judicial notice of the fact that the ponds are generally large in relation to the area they serve, when compared to most contemporary development. We are strengthened in our conclusions by DIPNR’s letter of 1 December 2003. Clause 25 of SREP 17 designates DIPNR as the agency that has to be satisfied that the groundwater under and around the site will be protected. In reaching the departmental position, it appears that the officers of DIPNR have assessed the views of the experts of both parties. The Department’s letter indicates that it has concluded that the arrangements proposed by the applicant will protect the groundwater.

62 We turn to the issue of the management of lot 27, ie of Pond 6. The applicant’s primary position was that lot 27 should be dedicated to the council. However, the council does not wish to accept the dedication, and the Court sees no utility in forcing on the council the ownership of land that it does not want. There is no alternative (for the present at least) to Australand’s continued ownership of lot 27. This requires a sinking fund for the cost of maintenance. We note that the arrangements between DIPNR and Australand include the establishment of a sinking fund of $975,000. While the council considers this amount inadequate, we are persuaded by the fact that DIPNR considers it adequate.

63 In our opinion, the proposal’s impact on groundwater quality is acceptable.

The Green and Golden Bell Frog
The evidence

64 It is common ground between the parties that there are between 600 and 1,000 GGBFs on the site. The GGBF is a threatened species under the TSP Act. The development application includes a Species Impact Statement (SIS) for the GGBF.

65 The principal experts on the GGBF were Dr A Smith, an ecologist, for the council; and Dr A White, an environmental consultant with special expertise on the GGBF, for the applicant. Dr Smith’s evidence was supported by Mr I Drinnan, the council’s senior environmental officer, and by Dr H Cogger, a herpetologist. Dr White’s evidence was supported by Mr D Fanning, also an environmental consultant. Dr White has carried out surveys of the frogs on the site, and the adjoining Sydney Water sewage treatment plant site, since 1999. Dr Smith has visited the site once. Mr Drinnan last surveyed frogs in 1995. Dr Cogger has not visited the site.

66 Dr Smith and Dr White agreed that

· a population of 1,000 GGBF should be maintained on the site;

· use of created habitat as a substitute for natural habitat is only effective if a management system is in place in perpetuity;

· the chytrid fungus is either absent from the site or there is an unknown quality of the site that mitigates the disease;

· over-winter habitat has not been surveyed.

67 The main points of difference between Dr Smith and Dr White were:

· In Dr White’s opinion, if nothing is done on the site, the GGBF will become extinct. Dr Smith found no evidence for this. In his opinion, the proposal should be reduced to leave Ponds 4 and 5 intact.

· In Dr White’s opinion Ponds 4 and 5 do not contribute significantly to the GGBF population. Dr Smith thought that the ponds could contribute significantly.

· In Dr White’s opinion, protection against the chytrid fungus is not possible. Dr Smith thought that the proposal would increase the risk of introducing it.

· In Dr White’s opinion, gambusia is an important threat to the GGBF that justifies created habitat. Gambusia is a small fish present in some ponds on the site, though not in Pond 1. It eats frog eggs and tadpoles. Dr Smith thought that gambusia was relatively unimportant. Natural ponds with shallows and vegetation cover are better than created ponds and they do not require management.

· In Dr White’s opinion, the existing feeding area is constrained to the area shown on a map he prepared (tendered as Exhibit CC). Shelter habitat is more widely distributed on the site. Dr Smith said that there was no data on feeding and shelter. He relied on models, home range data from other frog experts and literature.

· In Dr White’s opinion, the 40m-wide buffer between the development and Pond 3 is sufficient. Dr Smith thought that a width of at least 100m was needed.

· While the experts agreed that staging was necessary, they disagreed on the method of staging. In Dr White’s opinion, Ponds 4 and 5 may be filled simultaneously with the bulk earthworks contract, while new habitat is created elsewhere. Dr Smith suggested that the new habitat should be created elsewhere, then there should be a waiting time of a minimum of four years. This was on the assumption that a created frog habitat may be regarded as successful only after two generations of frogs had bred there. Only if the program proves to be successful after four years, should Ponds 4 and 5 be filled in.

· In Dr White’s opinion management in perpetuity can be guaranteed. Dr Smith said that relying on this was too risky.

68 Mr Drinnan told the Court that in 1995 the council was alerted to the presence of GGBF on the site. The then mayor of Sutherland had asked him to investigate and he had surveyed the GGBF in Pond 5, finding 50 juveniles. He accepted that the number of frogs has since declined in this pond. He had not surveyed Ponds 0, 1 and 2. He agreed that in 1996 he had supported a resort proposal for the site that would have buried Ponds 4, 5 and 3. He explained that his support depended on stringent environmental management and was based on the fact that at the time there was significant GGBF population on Crown land in other parts of the peninsula. That population has since disappeared.

69 The experts agreed that frog populations expand and contract even in long-standing habitats, depending on weather conditions and availability of food. If a poor season provides little food, the frogs become cannibalistic. These factors contribute to large fluctuations in population numbers, quite apart from the factors considered in this case.

70 Dr Cogger supported Dr Smith’s opinion that created breeding ponds for the GGBF have varying degrees of success. He agreed that the prime areas for the GGBF were Ponds 1 and 2, and that if they were lost, there would be a significant impact on the frogs.

71 In general, Dr Cogger supported the applicant’s efforts in providing for the GGBF, though he warned that the Court should not accept that the efforts are certain to succeed. He made two main points. First, that construction phase of frog habitat was itself destructive and should be done in sequence, so that, while one area is being prepared as frog habitat, another remains undisturbed as a refuge. The second point was that the public should not have access to areas set aside for frog habitat. The applicant initially proposed pedestrian paths through the habitat area, but these were eliminated during the hearing.

Findings

72 Four significant questions arise out of the evidence:

· Is the GGBF likely to disappear if the site is left as it is? In our opinion the GGBF is likely to disappear.

· Is the destruction of Ponds 4 and 5 fatal to the GGBF on the site? In our opinion, Ponds 4 and 5 are not essential for the continued presence of the GGBF on the site.

· Will the proposal provide adequate habitat and foraging ground for the frog? In our opinion, it will, subject to appropriate conditions of consent.

· Does the creation of managed habitat involve an unacceptable level of risk? In our opinion the risk in managed habitat is acceptable.

73 Our reasons for reaching the above conclusions are as follows. We have placed major weight on Dr White’s evidence because he has worked on the site since 1999, while Dr Smith paid one visit (without seeing any frogs), Mr Drinnan last surveyed frogs 1995 and Dr Cogger has not been to the site. In addition, Dr White and Dr Cogger are herpetologists who concentrate on frogs, while Dr Smith and Mr Drinnan are environmental scientists working in a wider area. In addition, we find Mr Drinnan’s opposition to this application hard to reconcile with his support for an earlier proposal that covered Pond 3 as well as Ponds 4 and 5. We do not think that his explanation, (that the reason for his support was the presence of frogs in 1996 on Crown land elsewhere on the peninsula) was persuasive. If there were frogs on Crown land that have since disappeared without any development, does it not indicate that leaving this site undeveloped could also lead to the destruction of the frogs?

74 Indeed, the evidence suggests that, if the site were left undeveloped, natural processes are likely to lead to the extinction of the GGBF. It is common ground that the mobile dune will cover Pond 1 and part of Pond 2 within a few years. Pond 0 may also be affected, though this is less certain. Pond 1 and Pond 2 are where Dr White surveyed the most frogs. In addition, the site is turning from an open area into a forest, which, the experts agreed, was slowly reducing the foraging home range. We note that there were no frogs on the site ten years ago, so we do not have on this site a natural habitat of long standing.

75 With regard to the filling in of Ponds 4 and 5, we accept Dr White’s evidence that these ponds are the least favoured by the frogs. None of the council’s experts could effectively counter this, since they had little familiarity with the site. We note the various criticisms of Dr White’s methodology, including that his sampling was biased, that he failed to radiotrack the frogs and that he spent less time surveying Ponds 4 and 5 than the other ponds. The survey records show, however, that Dr White surveyed all the ponds and none of the other experts surveyed any since 1995.

76 With regard to the adequacy of habitat, we accept Dr White’s evidence that there will be about 8 ha of foraging habitat. We note that Dr Smith calculated that 17.5 ha would be necessary. This is a theoretical calculation. It is not borne out by the presence of between 600 and 1,000 frogs on the site on foraging areas that are less than 8 ha.

77 We note that the applicant’s experts placed major weight on the risk to the GGBF of gambusia, while the council’s experts said that the risk of the chytrid fungus was the major threat. We are unable to decide which is the greater threat and we suspect that scientists will be arguing about the question many years from now. Whatever the answer, the possibility that material imported to the site may bring with it the virus does not seem to us sufficient reason to refuse the application, given that the expert evidence was that, with appropriate quality control of all imported materials, the risk is small.

78 Finally, we turn to the question of managed habitat. We accept that, all other things being equal, a natural habitat is better than a managed one. However, it is important to keep things in perspective. This natural habitat is only ten years old. It has hardly proved itself for the long-term. It is natural only to the extent that no one intended it as a frog habitat. The ponds are the leftovers of past sandmining, which is hardly a natural activity. While we accept that breeding ponds do not always succeed, we must place this knowledge against the likelihood that, if the site were left undeveloped, it would cease being a frog habitat. In our opinion, a managed habitat offers a higher probability for the GGBF’s survival, than the “do nothing” option, which is not correctly described as natural processes option.

79 We have given careful considerations to Dr Smith’s suggestions. We accept that 100m buffer between the development and Pond 3 would increase the chances of the GGBF’s survival. Despite Dr White’s opinion that a buffer of 40m is adequate, we have imposed a condition, requiring a buffer of 100m. As regards Dr Smith’s suggestion that the development should be reduced by about 60% so as to retain Ponds 4 and 5, we do not think that this is reasonable, justified or would constitute the same development. As regards his suggestion that the approval should be subject to a deferred commencement condition requiring the successful establishment of the frog habitat, we do not think that such a deferred approval would be reasonable, practical or that the planning legislation allows us to impose it.

80 We conclude that, subject to suitable conditions, the proposal is not likely to have a significant effect on the GGBF.

Kurnell Dune Forest and Sydney Freshwater Wetlands

81 The council’s expert, Dr A Clements, a plant ecologist, told the Court that the remnant vegetation on the northeast portion of the site was the endangered ecological community KDF. Mr D Fanning, an environmental consultant retained by the applicant, was not certain that the vegetation was KDF. Nothing turns on this, since both experts accepted that the proposal would not threaten the survival of the vegetation. The only threat to the KDF is from the mobile Cronulla dune, which, if not stabilised, would cover part of it within 20 years. At the site inspection the Court saw trees and shrubs recently engulfed by the advance of the dune.

82 The parties accepted that the ponds on the site are part of the endangered ecological community SFW. Mr Drinnan said that 49% of the SFW on the site would be destroyed. Mr Fanning calculated that the area for freshwater habitat on the site would increase from 5ha to 6ha.

83 Given the partisan nature of the above evidence on facts that should be agreed on by the experts, we have no option but to determine the matter by ourselves using common sense. The proposal would fill in two of the six existing ponds. It would also rehabilitate the remaining four and create a new Pond 6 and improve their interconnection by reshaping the land between them. If the site and dune were left to itself, one, two and possibly three of the ponds would fill up. We are satisfied that the positive aspects of the proposal outweigh the negative effect of filling Ponds 4 and 5. The impact on SFW is acceptable.

The mobile dune
The evidence

84 The bare mobile dune on the site, while on private land, is open to the public, which uses it for recreation, such as walking and sliding. Because it is of white sand, it stands out from afar. It is located within proposed lot 28. The applicant has offered to dedicate lot 28 to the council. Dedication could occur after rehabilitation and landscaping, or before it with a suitable financial arrangement to enable the council to rehabilitate the land in a manner it considers appropriate. The council has resolved not to accept the dedication. Consequently the applicant will retain ownership of lot 28 and maintain it until such time as a public body accepts it.

85 At a meeting on 6 August 2003 the Heritage Council State Heritage Register Committee considered the listing of the Cronulla dune on the State Heritage Register. The Committee noted that

Australand’s development applications (DA 99/9436 and DA 00/1547) as modified in June 2003, retain the sand dune, ponds and remnant Kurnell Dune Forest in one residual lot; and

Australand’s willingness to rehabilitate the areas recommended for listing as well as those areas of potential State significance nominated by the local council, in accordance with a rehabilitation management plan to be prepared in consultation with the Heritage Council.

86 On 26 September 2003 the mobile dune on the site was listed on the State Heritage Register as part of the Cronulla Sand Dune and Wanda Beach Coastal Landscape. In a letter of 19 September 2003 giving notice to the applicant of the listing, Reece Mc Dougall, the Director of the Heritage Office, stated:

Whilst noting that the transient dune’s unvegetated state makes it particularly apparent within the landscape, scientific data supports the view that the dune is moving in a northwest direction. Hence the Heritage Office recognises that the long-term conservation of this important feature will require the implementation of suitable rehabilitation measures. This could include, but is not limited to, actions to stabilise and revegetate the dune.

87 In announcing the listing in Parliament on 18 September 2003, Diane Beamer, the Minister assisting the Minister for Infrastructure and Planning (Planning Administration), said:

The site is highly significant to the Aboriginal community, and the dunes still have great significance for the Aboriginal community of La Perouse on the other side of Port Botany. The dunes formed part of a massive and largely vegetated dune system. Following European settlement, dunes in the area were progressively stripped of trees, heath and native grasses. …Scientists tell us that the dunes are moving northwest at a rate of between one metre and seven metres a year. …
The only threat to the preservation of the sand dunes in the future will be the natural elements – that is, wind, rain and tide. I am pleased to inform the House that the owner of much of the dunes, Australand, has said that it is happy to undertake the stabilisation and revegetation work.

88 On 22 December 2003 the Director of the Heritage Council wrote to Sutherland Council advising that, since the Cronulla Dune has been declared an item of State heritage, the applications have become an integrated development application requiring the Heritage Council’s approval under s63 of the Heritage Act. It further advised that it has refused both applications on the grounds of insufficient information. The lack of information was due to the applicant’s failure to submit a rehabilitation management plan.

89 The experts on dune geomorphology were Professor P Cowell, for the council, and Mr P Conacher, an environmental consultant. It was common ground between them that the dune is moving north at the rate of 5m per year and would cover Pond 1 and part of the KDF in 10 to 20 years. According to Mr Conacher (but not Professor Cowell), Ponds 0 and 2 would also be covered. However, it was agreed that the adjoining dune might cover part of Pond 2. They also agreed that the dune was covered with natural vegetation at the time of white settlement. According to Professor Cowell, in prehistoric times the dunes were bare.

90 Mr W Mayne-Wilson, a conservation and landscape architect, gave evidence in the council’s case. Professor R Mackay, a heritage expert, gave evidence for the applicant. The experts agreed that the dune had heritage significance, that it should be preserved, and that there were reasons for leaving it in its bare state as well as reasons for stabilising and revegetating it. The main difference between them was that, for cultural reasons, Mr Mayne Wilson wanted to keep the dune in its bare state, while Professor Mackay considered that stabilising the dune and bringing it back to its state before white settlement was the appropriate course.

91 Assuming that the dune is to be stabilised and revegetated, there remains a further disagreement between the parties regarding the method by which this is to be achieved. (The disagreement extended beyond the dune to the whole of proposed lot 28, but the arguments were the same.) The applicant’s experts Mr Conacher, Mr S Leake, a soil scientist, Mr E Lucas, a civil engineer, and Mr J Delaney, a landscape architect explained the proposal to the Court. Mr Lucas said that the earth works would have to be carried out from the rear of the dune. Sand would be excavated at the top of the dune behind the north face, in order to allow the sand to fall back to form a stable slope of 3 to 1. Mr Lucas also illustrated alternative ways of bringing machinery to the dune: one through council land (preferable but dependent on council permission) and one through the site (less desirable but independent of the council).

92 Mr Leake said that, in order to speed the growth of vegetation, he suggested to change the chemical composition of the dune soil. While he was criticised by the council’s experts that he was adding too much iron to the soil, he demonstrated that his proposal would bring the dune soil in line with the characteristics of the soil in the section covered by the KDF. Mr Delaney proposed to use fertiliser and mulch in order to increase the rate of growth of the new vegetation. According to Dr Clements, this was the wrong approach as it was trying to condense natural processes that take thousands of years into a ten-year period. Dr Clements recommended a process of seed collection from the site followed by planting of seedlings without chemical additives, fertilisers or mulch. She noted that she did not know of any successful attempts to revegetate bare dunes. Mr Conacher disagreed and showed photos of dune revegetation with which he was associated. He agreed that these were of a smaller scale than the Cronulla dune.

Findings

93 Three major questions arise out of the evidence:

· Should the Heritage Council’s refusal of the applications automatically lead to its refusal by the Court? In our opinion, it should not.

· Should the dune be left bare or be stabilised and revegetated? In our opinion it should be stabilised and revegetated.

· If the dune is revegetated, is the use of chemical additives, mulching and fertilising appropriate? In our opinion it is.

94 Our reasons for the above conclusions are as follows. Under s39(6A)(b) of the Land and Environment Court Act 1979 the Court has the power approve an application when an approval body has decided not to grant its approval. We note that in August and September 2003 the Heritage Office has accepted that the dune is to be stabilised and revegetated. The relevant Minister has not only accepted it, but has declared herself pleased about the prospect. The reason for the Heritage Council’s refusal was the non-existence of a rehabilitation management plan. Condition 3.1 of the bulk earthworks consent requires the preparation of a Rehabilitation and Landscape Management Plan approved by the Heritage Council. Thus an approval by the Court will not pre-empt, reduce or by-pass the Heritage Council’s control over the rehabilitation management plan.

95 On the second question, we accept that recreational use of the dune is important and, other things being equal, should continue. However, other things are not equal. If the dune is left as it is, it will move and bury Pond 1, part of Pond 2 and possibly Pond 0. The survival of the GGBF, KDF and SFW would be threatened. Continued walking and sliding on the dune would probably reduce its stability and increase its mobility. Recreational use of the dune is therefore in direct conflict with environmental values. Such conflicts occur frequently, and on each occasion a choice must be made. In our opinion, on this dune the environmental values should prevail.

96 We are strengthened in the above conclusions by several facts that emerged during the proceedings. First, while the dune may have been bare a thousand years ago, at the time of white settlement, it was vegetated. Revegetation would therefore bring it back to its “natural” state. Second, the applicant could proceed with the industrial subdivision without doing the proposed works on the dune. Third, if the council wishes to treat the dune differently, it has the option of accepting the dedication offered by the applicant. Fourth, the recreational use of the bare dune is taking place on private land. The public using the dune is, in a strict legal sense, trespassing. There is no inherent reason why it should not continue to do so other than the need to stop the dune from filling in the ponds and burying the trees on the site, and possible concerns by the owner about public liability for any injury to recreational users.

97 We turn to the method of revegetation. We accept that, whatever method is used, the success of a proposal as ambitious as the one before us is subject to risk. However, it seems to us that, if the applicant is to remain in control of the dune, it is reasonable that it should follow the advice of its own experts on how it can best stabilise the dune. The applicant’s experts propose a less “natural”, more accelerated method of revegetation than Dr Clements would advise. Nothing in the evidence persuades us that the accelerated method is likely to lead to environmental harm. The applicant is obliged to achieve the revegetation of the dune, as indicated in the proposal. It will have to follow a Fauna and Flora Management Plan, a Site Bulk Earthworks Management Plan and a Rehabilitation and Landscape Management Plan. The council must approve all the above management plans before the consent becomes operational. We are satisfied that these requirements provide sufficient probability that the proposed stabilisation and revegetation of the dune will be achieved. Certainty of success in these kinds of proposals does not exist.

Visual impact
The evidence

98 The question of this development’s visibility depends on two factors: the height of the proposed landscaping and the future of the mound on the Breen land near the south boundary.

99 The landscape experts were Mr M Blanche, for the council, and Mr J Delaney, for the applicant, both of them landscape architects. While they disagreed on the height that vegetation in various locations are likely to achieve, we do not consider their differences to be of great moment. They agreed that along the boundary with the Reserve, the height would be 2-3m. They disagreed on the vegetation at the rear of proposed lots 19-21, with Mr Blanche predicting a height of 2-3m and Mr Delaney predicting 4m.

100 The parties disagreed whether reliance can be placed on the “stored” landfill mound on the Breen land near the south boundary to screen the development. We have accepted that the mound may be removed and cannot be relied on for screening.

101 Evidence on the visual impact was given in the council’s case by Mr D Chesterman, an architect and town planner. The applicant’s expert was Mr C Weatherby, a surveyor and town planner. They agreed that the development would be visible from Taren Point, Bate Bay Road, Captain Cook Drive, Wanda Beach car park and from certain locations on the path in the Wanda Reserve. At night the development could also be seen from Cronulla Promenade.

102 Mr Weatherby presented several diagrams showing view lines from distant viewing points, in particular from Taren Point. These showed that only the top 3m of a 12m high building could be seen. Mr Weatherby confined himself to describing what could be seen. Mr Chesterman’s evidence included the value judgment that the change to urban development would have an unacceptable impact on the scenic quality of the Kurnell Peninsula.

Findi n gs

103 Two main questions arise out of the evidence:

· Will the development be highly visible? In our opinion the development will not be highly visible, though it will be seen from several nearby locations.

· Will the visual impact be unacceptable? In our opinion, given appropriate conditions of consent, it will not be unacceptable.

104 Our reasons for the above conclusions are as follows. All visual assessment in the evidence was based on the assumption that all the buildings in the development would be uniformly 12m high. It was clear from Mr Weatherby’s evidence that with a 9m-height limit, the development would not be seen from Taren Point (and presumably from other distant locations). That evidence persuaded us that, if a blanket height is to be imposed, it should be 9m. This does not mean that no part of any building can exceed 9m. However, if an application is made for a building that in part exceeds 9m, it must demonstrate that the building will not be prominent in the landscape, either by virtue of its shape and colour or because of screening vegetation.

105 While we have assumed that the mound on the Breen land may be removed, we note that the proposal includes dense landscaping on the southern side. In addition, the mound would need council consent for removal, at which time a vegetative screen could be required as a condition of consent.

106 The experts agreed that the development would be seen from Bate Bay Road, Captain Cook Drive, the Wanda beach car park and the path in the Wanda Reserve. The imposition of a lower height limit will mean that the views from those locations will be less dominant. In the final analysis, the acceptability or otherwise of the visual impact is a matter of value judgment. An industrial park, no matter how well landscaped, will not look like a national park. The illumination at night signifying urban development will inevitably contrast with the rest of the Peninsula, which is unlit. In reaching the conclusion that the visual impact is acceptable, we placed major weight on the fact that the 7(b) zoning allows urban development.

Is the proposed use appropriate and adequately described?

107 The application is for a subdivision for an industrial park. SREP 17 does not define industrial park. We therefore accept the common understanding of and industrial park being an area of factories and warehouses, set in landscaped surroundings. As noted above, the zone objectives in SREP 17 single out tourism, recreation and industrial parks as suitable uses. The council contends that the application does not contain sufficient information about future uses to allow it to be determined.

108 We do not see how at this stage the applicant could provide more detailed information. The normal process of development in Australia is that land is subdivided into allotments that are sold separately. Individual owners of the allotments subsequently submit development applications for buildings that are to be used in specific ways. None of this information is known now. If the applicant were required to provide details of future uses, it would have to invent them. Exhibit 42, prepared by Dr C Jewell, contained a list on industrial uses that may represent unacceptable pollution risk to groundwater and therefore endanger the GGBF and SFW. A list very similar to Mr Jewell’s is now incorporated in Condition 11.4 to the Subdivision Consent.

109 The council further contends that an industrial park, if it includes bulky good retailing, is inappropriate and would have adverse impact on other retail and business areas in Sutherland. Mr P Leyshon, an expert on retailing, gave written evidence that the site was inappropriate in planning and operational terms for bulky goods retailing. Bulky goods retailing would conflict with the established retail hierarchy in Sutherland. It would have a significant impact on existing bulky goods retailing at Taren Point. We accept Mr Leyshon’s evidence, subject to the proviso that we could not refuse an application only on the grounds that it provides commercial competition to establishments at Taren Point or any other location.

110 The important point, however, is that we do not have before us an application for bulky goods retailing. The application before us is for creating 26 industrial allotments (amended to 25 by the consent), for which there are numerous possible uses that would not be in competition with other commercial and industrial areas in the Shire. If we refused this application on the basis that it might contain uses that are potentially in competition with other areas, we would be acting outside the confines of planning legislation.

The buffer around the Cronulla Sewage Treatment Plant

111 Clause 24(2) of SREP 17 states:

The council shall not consent to the carrying out of development on land within Zone No 7(b) for the purposes of commercial premises (other than commercial premises ancillary to another purpose), retail activities or holiday accommodation where the proposed development will be situated within 400 metres:

(a) from existing treatment structures of the Water Board’s Cronulla Sewerage Treatment Works; or
(b) from the northern boundary of the site on which those structures are erected.

112 The parties have drawn different lines for the 400m-wide buffer. This is because the council measured the line from Keegan’s Lake, a pond that used to hold excess raw effluent but has now been rehabilitated as part of the upgrade of the sewage treatment works, though it may still be used for surcharge during major rainfalls. The applicant measured it from the nearest existing plant structure. The council’s line encompasses about two-thirds of the proposed subdivision, while the applicant’s excludes all of the subdivision, though it includes Pond 6.

113 In the applicant’s submission, the Court does not need to determine where the buffer line falls because the buffer line does not apply to industrial use, which is to be the principal use of the subdivision. We accept this submission. If at some future time an application is made for the use of one of the allotments for commercial premises or retail activities, the decision will have to be made whether it falls within or without the 400m-wide buffer. It is unnecessary to make that decision now.

Comments by public authorities

114 Air Services Australia commented on the proposal on 28 June 1999. There is no suggestion that those comments constitute grounds for refusal.

115 The Department of Land and Water Conservation (now part of DIPNR) commented on 12 August 1999, raising issues of impact on native vegetation and GGBF habitat. These issues are addressed in the judgment.

116 The Environment Protection Authority, now part of the Department of Environment and Conservation (DEC), commented on 30 June 1999, raising issues of soil and water contamination, odours from the sewage treatment plant, ecologically sustainable development, possible presence of acid sulphate soils and transport. Those issues were either resolved before the hearing or are addressed in the judgment.

117 The Department of Mineral Resources commented on 30 June 1999, noting the capacity of the proposal to rehabilitate the subject site and thus providing a valuable use for the former sand extraction area.

118 NSW Fisheries commented on 29 June 1999, raising issues in relation of stormwater runoff and impact on groundwater and its effect on the aquatic environment in Towra Point Nature Reserve. These issues are dealt with in the judgment.

119 The Roads and Traffic Authority commented on 23 July 1999. The issues it raised are addressed in the conditions to this consent.

120 The Sydney Water Corporation confirmed, in relation to an application made on 3 July 2003, that water was available to the site. Its agreement to supply water and to dispose of wastewater is the subject of conditions that form part of the consent.

121 The National Parks and Wildlife Service (now part of DEC) commented on 13 July 1999, raising issues relating to the GGBF. The council subsequently referred the SIS accompanying the application to the Service, although the referral was for comment, not for concurrence. On that basis, the DEC’s response, signed by the Acting Manager of Central Conservation Programs and Planning and dated 13 September 2003, did not indicate whether it would grant concurrence. The letter made reference to the fact that “the development applications mentioned above are now the subject of an appeal shortly to be heard in the Land and Environment Court”.

122 On the second last day of the thirteen-day hearing, the Court received a letter, dated 29 October 2003, from the Manager of the Threatened Species Unit, Central Conservation Programs and Planning Branch of the Environment Protection and Regulation Division of the DEC. The letter indicated that the DEC would “be happy to review the relevant documents and indicate whether the Department is of the opinion that the matters that we have stated need to be addressed (Director General’s requirements for the Species Impact Statement), have been satisfactorily addressed and whether concurrence should be granted in accordance with the relevant considerations in section 79B(5) of the EP&A Act 1979”. The review would not be ready until 14 November 2003, ie two weeks after the final day of the hearing.

123 While the Court is not bound by the concurrence provisions, it is always ready to consider the views of government departments in the context of the evidence before it. In this case the Court would have been assisted by the DEC’s views. However, these views should have been available during the period set for the hearing.

124 The hearing was scheduled for 14 October long before that date. On the 13 September (if not before) the DEC was aware of the imminent nature of the hearing. There was ample time for the DEC to indicate to the Court that it wished to give evidence in the proceedings. Alternatively, it would have been open to the council to include the DEC’s views in its evidence.

125 If the Court were now to accept the DEC’s offer to review the application, it would have to adjourn the hearing for at least four weeks. The party not favoured by the review’s result is likely to apply to re-open the case. The Court has a duty to conclude cases in reasonable time. Delaying the decision and extending an already lengthy hearing would further increase costs to the parties. The Court has before it the expert evidence of five experts in relation to the GGBF. We do not think that the chance of receiving evidence from a sixth expert justifies additional costs and delay.

126 The involvement of the Heritage Council of NSW was discussed in paragraph 94 under the heading The mobile dune.

Concerns of objectors

127 The Court heard the evidence of six objectors, namely Ms D Hardy, Ms A Hogan, Ms S Ford, Mr J Sullivan, Mr I Sinclair (who is President of the North Cronulla Precinct Committee) and Mr A Towart (who is Secretary of the Kurnell Regional Environmental Planning Committee and Treasurer of the Botany Bay Catchment Alliance). In addition to the above, the Court also read the written statements of Mr S Williams, Ms S Ford, Mr W Kent, Mr C Wyatt, Ms G Longhurst, Mr M Webb, Mr M Way, Ms M Ford-Eriksson and Dr P Clements. These statements supported the oral evidence of the six objectors who appeared in Court.

128 The objectors live in the area and use the Wanda Reserve and the mobile sand dune on a daily or weekly basis. They want the site to be kept in its existing state for recreation. They want the mobile dune kept in its bare state, despite the fact that it is moving. They object to the proposal for numerous reasons, ie

· further urban development on the Peninsula is inappropriate

· it is likely to pollute the groundwater and consequently the wetlands and bird sanctuary

· it will increase the traffic on Captain Cook Drive

· it will be unsightly from the Reserve as well as from Captain Cook Drive

· a bad smell from the sewage treatment plant pervades the whole site

· development would be an impediment to future expansion of the sewage treatment plant.

129 It is clear that the objectors believe that the area should be used for recreation, not for development. While we accept that this is a possible future for the site, we must take into consideration that the 7(b) zone permits urban development and that the zone objectives specifically refer to an industrial park. The issue of traffic was resolved before the hearing. As for the remaining issues, they are discussed elsewhere in the judgment.

The Botany Bay Strategy

130 The council contends that the Court should adjourn the decision on this appeal pending the outcome of the Botany Bay Strategy.

131 As mentioned above, when the Minister for Urban Affairs and Planning announced a review of SREP 17 in July 2000, he suggested that the site might be used for housing. However, there was no mention of housing in his September 2002 announcement of a comprehensive study of the Kurnell Peninsula and review of SREP 17. The Minister foreshadowed that the study would be completed by late 2003. The study and review were called the Botany Bay Strategy.

132 The appeals were lodged in February 2000. Between July 2000 and January 2003 the proceedings were adjourned on several occasions, pending the outcome of the Botany Bay Strategy. During the course of the hearing the Court received two letters from Mr G Prattley, Executive Director, Metropolitan Planning, DIPNR. The first, dated 17 October 2003, indicated that the draft Botany Bay Strategy had no status as a planning instrument or policy. It had not been exhibited and was not a public document. There was an intention to put the draft Strategy to the Minister in November 2003 for his consideration, however the document had no formal endorsement from the Director-General, the Minister or the Government.

133 The second letter, dated 22 October 2003, stated that strategic planning work for Botany Bay and the Kurnell Peninsula had not advanced to the point where it could be said that DIPNR had a view about future uses for sites on the peninsula beyond that expressed in SREP 17.

134 The appeal has been with the Court for almost four years. The Botany Bay Strategy was promised for the end of 2003, but on 22 October Mr Prattley could not assure the Court that the promise would be honoured. The last hearing date of the case was on 24 December 2003, at which time there was no suggestion that the Strategy had become public. It seems to us that it would be unreasonable to defer the decision on this appeal pending the outcome of a planning strategy whose authors cannot commit to a completion date.

Aims and objectives of SREP 17

135 The council contends that the proposal is inconsistent with SREP 17. It has identified cls 2(1)(a), 2(1)(b), 2(1)(c), 2(1)(d), 2(2)(d), 2(2)(h) and 9(3), as well as objectives (b), (c), (d) and (e) of the 7(b) zone as relevant.

136 Clause 2(1)(a) is the first of six general aims and objectives of the regional plan. It aims:

To conserve the natural environment of the Kurnell Peninsula and ensure that development is managed having regard to the environmental, cultural and economic significance of the area to the nation, state, region and locality.

137 We are satisfied that the proposal will be managed with regard to the environmental and cultural significance of the area. We have dealt with the impact on threatened species, endangered ecological communities and heritage significance in this judgment. We understand that there was no issue in relation to economic significance (except for possible impact on other commercial and industrial areas, which is not relevant to this clause).

138 Clause 2(1)(b) is the second of six general aims and objectives of the regional plan. It aims:

To apply environmental performance criteria which will ensure that the environment is not adversely affected by the development.

139 The proposal is subject to environmental criteria with respect to the GGBF, the quality of stormwater discharge, the heritage significance of the Cronulla Dune and visual impact.

140 Clause 2(1)(c) is the third of six general aims and objectives of the regional plan. It aims:

To promote, encourage and facilitate opportunities for commercial, industrial and tourist development consistent with conservation of the unique ecological and landscape attributes of the Kurnell Peninsula.

141 The proposal is industrial development. It uses about one-third of its site, rehabilitating the remainder mainly for a managed frog habitat. It is to be heavily landscaped, both on the edges and within. It is to be kept to a 9m-height limit. Within the context of the zoning that the regional plan allocates to the site, in our opinion the proposal is consistent with cl 2(1)(c).

142 Clause 2(1)(d) is the fourth of six general aims and objectives of the regional plan. It aims:

To ensure that development is coordinated to allow the economic and efficient provision of public services and amenities having regard to the environment.

143 There was no suggestion that the servicing of the proposal would not be coordinated with the provision of public services and amenities. The issue of regard to the environment is discussed throughout the judgment.

144 Clause 2(2)(d) is the fourth of eight particular environmental planning aims and objectives of the regional plan. It aims:

To identify and conserve areas, sites and features of natural, ecological, historic or cultural significance.

145 The proposal conserves the Cronulla Dune, which is a site of natural, ecological and cultural significance.

146 Clause 2(2)(h) is the last of eight particular environmental planning aims and objectives of the regional plan. It aims:

To control and progressively phase out sand mining and to facilitate the rehabilitation of degraded lands.

147 The proposal rehabilitates the whole site and retains two-thirds of it undeveloped.

148 Clause 9(3) states:

Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless it is of the opinion that the carrying out of the development is consistent with the aims and objectives of the plan and the objectives of the zone within which the development is proposed to be carried out.

149 Objective (b) of the 7(b) zone aims:

To ensure that development is compatible with the unique ecological and landscape attributes of the Kurnell Peninsula, especially the wetlands area and their environs.

150 We are satisfied that, given urban development of the site permitted by the zoning, the proposal has achieved a high level of compatibility. There will be no adverse impact on the wetlands in the vicinity or their environs.

151 Objective (c) of the 7(b) zone aims:

To ensure that sand mining is controlled and facilitate the progressive phasing out of sand mining and the rehabilitation of degraded lands.

152 The proposal rehabilitates degraded land that results from sandmining.

153 Objective (d) of the 7(b) zone aims:

To promote the orderly and economic development of land within the zone, subject to the provision of adequate water and sewerage services and the disposal, in an environmentally sensitive manner, of all wastes and stormwater from the land.

154 The relevant aspect of the proposal, with respect to the above, is stormwater disposal, which was the subject of a great deal of evidence. We are satisfied that the proposed measures, together with the conditions of consent, achieve the above aim.

155 Objective (e) of the 7(b) zone aims:

To promote, enhance and utilise the development potential of the zone primarily for tourism, recreation or industrial parks, where this is consistent with the conservation of the unique, ecological and landscape attributes of the Kurnell Peninsula.

156 This repeats the content of general aim and objective 2(1)(c), discussed above.

157 In our opinion, the proposal is consistent with the general aims and objectives, the particular environmental planning aims and objectives and the zone objectives of the 7(b) zone of SREP 17.

Conditions of consent (discussed on the last hearing day on 24 December 2003)

158 The parties disagreed about most conditions of significance. They submitted several drafts of their own proposed conditions, which were not in the same order. Although they tried to make their differences easily comprehensible to the Court, we nevertheless found it difficult to find our way through the many versions of conditions presented by each party. The purpose of this section is to explain the principles we followed in reconciling two widely differing positions.

159 The council listed nine areas of concern, not all related to the conditions. First, the council contends that it is not possible to formulate conditions that provide sufficient certainty for approval. While we agree that certainty of outcome is not assured, in our opinion the likelihood of the project being carried out as proposed is as high as it is in most other applications of this magnitude and complexity.

160 Second, the council contends that the proposal does not provide sufficiently defined performance criteria in relation to the management plans. It is common ground that not all management plans have been prepared and that those that have been, need to be updated. Condition 3.1 (which is a deferred commencement condition) of the Bulk Earthworks consent requires the preparation of five different management plans, all of which must be approved by the council and some of which must be approved by other agencies as well. The subdivision consent will be operational only after the bulk earthworks consent becomes operational, ie after the management plans required by Condition 3.1 are approved by the council or, on appeal, by the Court.

161 Third, the council contends that the management plans that were part of the application were out of date. This is resolved by deferred commencement Condition 3.1 (see above).

162 Fourth, the council submits that the consent should be a deferred-commencement consent. We have accepted the submission in relation to the five management plans that the applicant must prepare or, where they already exist, bring up to date. We have not accepted it where the council’s draft conditions suggested that any subdivision work (and therefore any potentially profitable part of the proposal) should not start until two generations of the GGBF have survived on proposed lot 28. Given the many risks to the GGBF that have nothing to do with development, we do not think that this would be practical, fair or reasonable.

163 The draft conditions of council divided the proposal into five stages, while the applicant divided it into two. In our opinion, the purpose of staging is to maximise the prospects of the GGBF’s survival. Two stages are sufficient for this. We have, however, not accepted the applicant’s position in its entirety. We have excluded from Stage 1 lots 23-27 because they are close to the conservation area dedicated to the GGBF. We have also required the amalgamation of lots 25 and 26 and the reduction of the amalgamated lot so that it is separated at least 100m from Pond 3.

164 Fifth, the council submitted that the Court should refuse the applications because the arrangements between the applicant and DIPNR in relation to groundwater quality are unsatisfactory. We do not accept this. DIPNR’s letter of 1 December 2003 states that the Department is satisfied with the arrangements. The Court has not reason to assume that the letter expresses anything but genuine satisfaction.

165 Sixth, the council submitted that the Court should refuse the application because of the refusal by the Heritage Council. This issue was discussed in paragraph 94.

166 Seventh, the council contends that the management arrangements for lot 27 are not satisfactory. We note that the applicant’s preferred position is for the council to take over the management of lot 27, subject to reasonable financial arrangements. Since the council does not want to accept lot 27, there is no alternative to the applicant’s ownership of it. The management arrangements are satisfactory to DIPNR.

167 Eighth, the council contends that the management arrangements for lot 28 are also unsatisfactory. The issue with lot 28 is similar to the issue with lot 27.

168 Ninth, the council submits that the GGBF’s survival is so important that no subdivision should take place until survival has been guaranteed. We dealt with this issue in paragraph 162. It should be added that long-term survival is not guaranteed after four years or two generations. A drought, a virus or gambusia could destroy the GGBF at any time after that.

Orders

1. The appeals are upheld.

2. Appeal No 10123 of 2000 for bulk earthworks on lot 113 DP 777967, known as 422-450 Captain Cook Drive, Kurnell, is determined by the granting of a deferred commencement consent subject to the conditions in Annexure A.

3. Appeal No 10124 of 2000 for subdivision as an industrial/business park on lot 113 DP 777967, known as 422-450 Captain Cook Drive, Kurnell, is determined by the granting of deferred commencement consent subject to the conditions in Annexure B.

4. The exhibits are returned except Exhibits 33, 45, 46, 47, G, Q, R, S, W, X, BB, JJ, KK, PP, QQ, RR, SS and TT.

_________________ _____________________
Dr John Roseth K G Hoffman
Senior Commissioner Commissioner of the Court