Avalon Property Developments v Ballina Shire Council - [2008] NSWLEC 1402

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Avalon Property Developments v Ballina Shire Council [2008] NSWLEC 1402

PARTIES:
Applicant:
Avalon Property Developments Pty Ltd

Respondent:
Ballina Shire Council

FILE NUMBER(S):
10181 of 2008

CATCHWORDS:
Question of Law :- definition of public works and services

LEGISLATION CITED:

CORAM:
Roseth SCTaylor C

DATES OF HEARING:
7 October 2008

JUDGMENT DATE:
14 October 2008

LEGAL REPRESENTATIVES

Applicant:
Mr J Webster, SC
Respondent:
Mr N Hemmings, QC

JUDGMENT:

- 6 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Roseth SC, Taylor C
14 October 2008
10181 of 2008 Avalon Property Developments Pty Ltd v Ballina Shire Council
JUDGMENT

Senior Commissioner: The appeal is against the deemed refusal by Ballina Shire Council (the council) of a development application for a subdivision of 140 allotments at 121 Rifle Range Road Wollongbar. The council has posed two preliminary questions, said to be of mixed fact and law.
The two questions are:
(i) Are any or all of the proposed drainage basins, drainage treatment works, drainage channels and sewerage works proposed to be constructed in land zoned 7(d) Environmental Protection (Scenic Escarpment), “public works and services” within the meaning of objective 1(C) of zone 7(d) in the Table to clause 9 of the Ballina Local Environmental Plan 1987 (BLEP)?
(ii) If the answer to 1 above is yes, is there any evidence that there is an “overriding public need” for the drainage basins, drainage treatment works, drainage channels and sewerage works to conform to objective 1(C) of zone 7(d) in the Table to clause 9 of the BLEP?
During the hearing the applicant tendered plans that show that the facilities to which the questions relate are:

a sewer line partly located in the 7(d) zone; and
four drainage detention basins also located in the 7(d) zone. The basins are designed to function as sedimentation basins during construction. One of the basins is entirely within the 7(d) zone; one is half in the 7(d) zone and half in the 2(b) zone; and two are in the 7(d) zone only to a minor extent.

The questions must therefore be answered in respect of that part of the sewer line that is located in the 7(d) zone and those parts of the detention basins that are located in the 7(d) zone.
Relevant parts of the BLEP
Clause 9(7) of the BLEP states that:
Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.
The objectives of the 7(d) zone are:
A            The primary objectives are:
(a) to protect and enhance those areas of particular scenic value to the Shire of Ballina, and
(b) to minimise soil erosion from escarpment areas and prevent development in geologically hazardous areas.
B            The secondary objective is to enable development as permitted by the primary and secondary objectives for Zone No 1 (b), except for development, which could conflict with the primary objectives of this zone.
C            The exception to these objectives is development of public works and services, outside the parameters specified in the primary and secondary objectives, but only in cases of demonstrated and overriding public need and subject to the visual impact being minimised as much as is reasonably practical.
The primary and secondary objectives of the 1(b) zone are:
A The primary objective is to regulate the subdivision and use of land within this zone:
(a) to encourage the productive use of the land and enable development ancillary to agricultural land uses, particularly dwelling-houses, rural workers’ dwellings and rural industries, and
(b) to permit a range of uses which are compatible with the rural character of the land, particularly tourist oriented developments and recreation establishments and recreation facilities, and
(c) (Repealed)
B The secondary objectives is to ensure that development within the zone:
(a) maintains the rural character of the locality, and
(b) does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.
Clause 16 of the BLEP states:
(1)          This clause applies to land within 50 metres of a boundary between any 2 zones, except Zone No 7 (a), 7 (f) or 7 (i).
(2)          Subject to subclause (3), development may, with the consent of the council, be carried out on land to which this clause applies for any purpose for which development may be carried out in any adjoining zone.
(3)          The council shall not consent to the carrying out of development referred to in subclause (2) unless, in the opinion of the council, the carrying out of the development is desirable due to design, ownership, servicing or similar requirement relating to the optimum development of land to which this clause applies.
(4)          In respect of the carrying out of development on land to which this clause applies:
(a) clause 9 (4) shall not apply, and
(b) the provisions of section 84, 85, 86, 87 (1) and 90 of the Act shall not apply in the manner referred to in clause 9 (3).
Questions for the Court
In order to answer the questions posed by the council, the Court must set itself the following questions:
Are the sewer line and drainage basins uses that are consistent with the primary and secondary objectives of the 7(d) zone?
Are the sewer line and drainage basins public works and services within the meaning of the BLEP?
Is there a demonstrated overriding public need for locating the sewer line and drainage basins in the 7(d) zone?
Has the visual impact of the sewer line and the drainage basins been minimised as much as is reasonably practical?
The second question requires a determination of what are public works and services. This poses some difficulty since neither the BLEP nor the Environmental Planning and Assessment Act 1979 defines public works and services. The applicant’s submission borrows a definition from the Public Works Act 1912; however, this does not seem appropriate, since there is no connection between the definition and environmental planning. The general principle is that, where a piece of legislation lacks a definition, the words take on their ordinary meaning.
The ordinary meaning of public works and services is works and services (ie roads, sewerage, drainage, transport, hospitals), which are owned and managed by a public body and/or available and accessible to the general public. A sewage treatment plant owned and managed by a council is public works and services; a sewage treatment plant owned and managed by the Owners’ Corporation of a Strata subdivision is not public works and services.
The sewer line
We turn to the first question. Is the sewer line a use that is consistent with the objectives of protecting and enhancing those areas of particular scenic value to the Shire of Ballina, and of minimising soil erosion from escarpment areas and preventing development in geologically hazardous areas?
Previous judgments of this Court have held that to be consistent with a zone objective, it is sufficient not to be antipathetic to it. The sewer line goes through steep land, which may be geologically hazardous, and it skirts a clump of trees. It is underground and methods exist to dig trenches without causing erosion or soil instability. So long as the sewer line is located so as not to disturb the existing trees, in our opinion, it is a development that is consistent with primary objective A.
However, the sewer line is antipathetic to the secondary objective, which is to be consistent with the primary and secondary objectives of the 1(b) zone. Those objectives are all directed towards promoting rural use and character. The sewer line serves residential development, the character of which is the antithesis of rural character.
We turn to the second question. The sewer line will be constructed by the applicant and dedicated to the council, which will own and manage it. There was no suggestion by the council that it will not accept ownership. The sewer line is therefore public works and services. (This was common ground between the parties.)
We turn to the third question, namely is there a demonstrated overriding public need for the sewer line being located in the 7(d) zone. The applicant submitted that it was possible to locate the sewer line within the 2(b) zone, but that this would require more pumping stations, while the design that passes through the 7(d) zone functions mainly by gravity. The applicant attempted to rely on expert evidence to prove this; however, that evidence was given to the council on the evening of the last working day before the hearing, so the Court’s acceptance of it would have been prejudicial to the council. The applicant also tendered an alternative design (to which the council did not object), in which the sewer line avoided the 7(d) zone. Based on the RLs at the location of the sewer line in the two designs, we accept that the line that passes through the 7(d) zone relies more on gravity than does the design that avoids the 7(d) zone. Since pumping stations require electricity, which in turn causes greenhouse emissions, and are subject to failure, we accept that there is a demonstrated overriding public need for the sewer line to pass through the 7(d) zone.
We turn to the fourth question. The sewer line is underground, so its visual impact has been minimised. The applicant said it was willing to move the sewer line to the east so as to ensure that it has no impact on vegetation.
Since the sewer line meets the exception under C of the objectives of the 7(d) zone, we conclude that it is permissible in that zone.
The drainage detention basins
We turn to the first question. Are the drainage detention basins consistent with the objectives of protecting and enhancing those areas of particular scenic value to the Shire of Ballina, and of minimising soil erosion from escarpment areas and preventing development in geologically hazardous areas?
The applicant provided little information on the drainage basins. There was a generic design of the basins, but no design of a particular basin in a particular location. The basins are located on steep land that may be geologically hazardous. There was no evidence that they are stable. In our opinion, the drainage basins are antipathetic to the primary objectives of the 7(d) zone.
They are also antipathetic to the secondary objective of the 7(d) for the same reasons that a sewer line is antipathetic to it.
We turn to the second question. The applicant intends to construct the drainage basins and then dedicate them to the council. The council submits that it will not accept ownership and management of the drainage basins because they are designed to discharge water and sediment into private land without an easement. While we accept that the argument regarding ownership may eventually be resolved, we cannot base our decision on the hope that this will happen. Unlike the sewer line, the drainage basins are not a facility available to the public or one that is connected to a system available to the public. We conclude therefore that the drainage detention basins are not public works or services.
We turn to the third question. Is there a demonstrated overriding public need for the detention basins to be in the 7(d) zone? The applicant submitted an alternative design that showed all detention basins on land that is zoned residential. We cannot discern any public benefit in the design that places the basins in the 7(d) zone over the alternative design. We conclude that there is no overriding public need to locate the drainage detention basins in the 7(d) zone. We note the applicant’s claim that locating the detention basins in the 7(d) zone would allow the applicant to remedy existing scouring. In our opinion, this is an issue that is independent of the location of the detention basins and could be required by conditions of consent.
We turn to the fourth question. There was not enough material before us to come to an opinion about the extent of the visual impact of the proposed detention basins. Given our conclusions above, it is not necessary for us to answer the fourth question in respect of the detention basins.
In view of the above answers, we turn to cl 16 of the BLEP to test whether the drainage basins, which are within 50m of the boundary between the 2(b) and the 7(d) zones, are permissible by virtue of that clause. Pursuant to cl 16(3) the council (or the Court) can consent to the construction of the basins in the 7(d) zone only if, in its opinion, the construction of the basins in the 7(d) zone is desirable due to design, ownership, servicing or similar requirement relating to the optimum development of land to which cl 16 applies. The term “optimum” is Latin for “best”, so the Court needs to reach the conclusion that the location of the basins in the 7(d) zone achieves the best development of the land (presumably both the land zoned 7(d) and the land zoned 2(b)) due to design, ownership or servicing. There was no evidence before us to justify such a conclusion. We cannot discern from the proposed and alternative drainage designs that one is superior to the other. Consequently, in our opinion cl 16 does not apply.
The proposed detention basins (not necessarily all detention basins) are a prohibited use in the 7(d) zone.
Conclusions
The first question was:
(i) Are any or all of the proposed drainage basins, drainage treatment works, drainage channels and sewerage works proposed to be constructed in land zoned 7(d) Environmental Protection (Scenic Escarpment)), “public works and services” within the meaning of objective 1(C) of zone 7(d) in the Table to clause 9 of the Ballina Local Environmental Plan 1987 (BLEP)?
The answer is yes in respect of the sewerage line and no in respect of the drainage basins.
The second question was:
(ii) If the answer to 1 above is yes, is there any evidence that there is an “overriding public need” for the drainage basins, drainage treatment works, drainage channels and sewerage works to conform to objective 1(C) of zone 7(d) in the Table to clause 9 of the BLEP?
The answer is yes in respect of the sewerage line and no in respect of the drainage basins.
___________________ _________________
Dr John Roseth Dr Mark Taylor

Senior Commissioner Commissioner