Broken Head Coastal Foundation Pty Ltd v Byron Shire Council

[2004] NSWLEC 233

Land and Environment Court

of New South Wales

CITATION:	Broken Head Coastal Foundation Pty Ltd v Byron Shire Council [2004] NSWLEC 233
PARTIES:	APPLICANT Broken Head Coastal Foundation Pty Ltd RESPONDENT Byron Shire Council
FILE NUMBER(S):	10499B of 1998
CORAM:	Nott C
KEY ISSUES:	Development Consent :- modification of private education facility on 111 ha at Seven Mile Beach - substantially the same development - increase in number of persons from 72 to 112 - new sewage and wastewater disposal
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96
CASES CITED:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ; Tipalea Watson Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 253
DATES OF HEARING:	18/03/2004 - 19/03/2004
EX TEMPORE JUDGMENT DATE :	03/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J J Bingham, solicitor SOLICITORS Deacons RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


10499B of 1998

Nott C

19 March 2004

Broken Head Coastal Foundation Pty Ltd
Applicant
v

Byron Shire Council
Respondent

Judgment


1 . On 8 December 1998 I delivered a short extempore judgment and made orders granting developing consent to DA98/0146 for a private education facility on lots 2 and 5 DP 729112, at 951 Broken Head Road, Broken Head. These orders were made by consent after the parties had engaged in extensive negotiations and had attended a mediation hearing at which objectors were present. Prior to making the orders I also heard evidence from several objectors.

2 . The development consent of 8 December 1998 was expressed to be subject to the conditions in annexure A to the order. The conditions that are particularly relevant to the present proceedings are A, C6, F3, F4, F5, F7 and F12, which I incorporate in my judgment:

A. Development to be generally in accordance with the plans prepared by The GeoLINK Group Pty Ltd, numbered plans Exhibits 3.1 and 3.2.1 (amended on 25/11/98 to show relocated building numbers 23 and 27, per Exhibit C), plans Exhibits 3.2.2, 3.2.3, 3.2.4, 3.2.6 to 3.2.17 inclusive 4.5 and 4.7 submitted on 1 May 1998 (in Exhibit A), as modified by any conditions of this consent.

C 6 The combined total maximum volume of sewage generated by the following premises shall not exceed 6,000 litres per day:
• The Centre;
• All accommodation units; and
• Any other buildings, which do not contain compost toilets.

Details are to be submitted for Council's approval prior to the release of any building approval regarding the proposed measures, including water metering, to be implemented to ensure compliance with this condition.

F 3 No more than 72 people will be accommodated on the site at any one time and such people will be engaged only in private education and any activity ancillary thereto.

F 4 No motor vehicle shall be parked anywhere on the site other than in the designated car parking areas.

F 5 None of the retreat buildings will be used for food preparation or overnight accommodation.

F 7 The accommodation units are not to contain laundry facilities.

F 12 The combined total maximum volume of sewage generated by the following premises shall not exceed 6000 litres per day:
• The Centre;
• All accommodation units; and
• Any other buildings, which do not contain compost toilets.

3 . Condition A referred to a number of plans that disclosed the nature of the development that was approved. Those plans are contained in a much larger document which was tendered in the proceedings back in 1998 as exhibit A and was again tendered in these proceedings as exhibit NA, the “N” referring to myself because there had been a number of proceedings before another commissioner and before judges of the Court, and I wish to distinguish the exhibits that I refer to from the exhibits referred to in other orders of the Court.

4 . The private education facility, the subject of the consent, is intended to provide for professional and personal development by a variety of academic, cultural and vocational programmes. The consent provides for the construction of various facilities including the centre also known as “Building 1” and 29 other buildings. Twenty-one of those buildings are somewhat similar and would provide self-contained facilities for overnight sleeping and for cooking of meals. The buildings which provide for this accommodation are buildings Nos. 2 to 22 as shown on the plan 3.2.1 part of exhibit A. Because of such a large-scale development, residences for several staff were also approved. The use of those residences would be ancillary to the approved purpose being a private education facility. There were also community buildings approved and there was a camping area.

5 . All this development was approved to be carried out on a very large property at Seven Mile Beach, the property having an area of 111 ha. As disclosed in exhibit A, in effect the whole of the property would be used for a private education facility, insofar as vegetative communities would form the subject of certain study activities.

6 . By a notice of motion filed in April 2001 (the first s 96 application), the applicant sought to modify the development consent. The modifications proposed related to buildings 2 to 22. Broadly speaking, what was proposed was that there would be a small increase in the floor area of these accommodation buildings that are self-contained. The details of the then proposed modifications are set out in a letter dated 5 April 2001 of Mr Connelly.

7 . The type A units that were approved had an internal floor area of 110 sq m. There could be some confusion in reading the plans that were approved because on the plans relating to these units a floor area is specified. For example in respect of unit A the floor area is given as 72 sq m and for unit B as 70 sq m. However looking at the plans those figures relate only to the ground floor of the units and do not take into account the second storey of the units. The type A units as approved in fact had a floor area, as I mentioned, of 110 sq m. What was proposed was to increase the floor area to 123 sq m.

8 . In respect of the type B units which had an approved floor area of 106 sq m, what was proposed was an increase to 118 sq m.

9 . External decking was also proposed to be increased. The letter of 5 April 2001 states:
The suspended deck has been extended to both types of accommodation to improve the overall amenity of the building and access to it. Extensions to the external deck will also ensure that ground disturbance and soil erosion are minimised and that ground-cover vegetation surrounding the accommodation units is preserved.


Accompanying the letter of 5 April 2001 were plans that showed what was approved and plans showing the units as proposed to be modified. Those plans are undated and I have dated the plans [5 April 2001].

10 . The council considered the s 96 application of April 2001 and resolved to support the granting of the modifications. The matter came on for hearing before his Honour Talbot J, who made orders by consent on 6 July 2001. I set out his Honour’s orders:

The Court Orders by consent that:
1 The Notice of Motion seeking modification pursuant to the provisions of Section 96 of the Environmental Planning and Assessment Act 1979 to the Court-granted consent dated 8 December be upheld. 2 The development consent for a private education facility at Lots 2 & 5 DP 729112, being 951 Broken Head Road, Broken Head, as approved by the Court on 8 December 1998, be modified as shown on drawings Figure 3 – S 96: Buildings 2-12 (Type A) (5 April 2001), Figure 4 – S 96: Buildings 13-22 (Type B (5 April 2001), and Figure 5 – Approved Development and S 96 Application Compared (5 April 2001). 3 Condition A of the Conditions of Consent be deleted and replaced with the following:
“A. Development to be generally in accordance with the plans by the Geolink Group Pty Ltd, numbered plans Exhibits 3.1 and 3.2.1 (amended on 25 November 1998 to show relocated buildings numbers 23 to 27, per Exhibit C), plans Exhibits 3.2.2, 3.2.3, 3.2.4, 3.2.6 as amended by Figure 3 (5 April 2001), 3.2.7 as amended by Figure 4 (5 April 2001) to 3.2.17 inclusive, 4.5 and 4.7 submitted on 1 May 1998 (in Exhibit A), as modified by any conditions of this Consent.”
4 Each party bear its own costs.


11 . In effect what the orders of his Honour achieve is that figures 3 and 4 dated [5 April 2001], which are the plans of the proposed modified development, replace the plans 3.2.6 and 3.2.7 of annexure A of the Court’s order of 8 December 1998.

12 . A second modification application under s 96 was lodged, the notice of motion being filed in the Court on 14 May 2002. What this modification application proposed was to change the relationship of some of the component parts of building 1, which is the main building on the subject site, containing the administration centre, kitchen, dining room, seminar room, library and certain other facilities and also disabled access units. The floor area, however, internally of the proposal remained the same as originally approved. The orientation of the whole building complex, building 1, was changed to a very minor extent in order to preserve some trees on the site that were pointed out to me on my site inspection today.

13 . It was also proposed that laundry facilities be provided. Further particulars of the proposed modification of 14 May 2002 are contained in the accompanying letter of May 2002 from Mr Connelly. The plans showing building 1 as intended to be altered are plans in figures 5, 6 and 7 of exhibit R.

14 . The matter came on before another commissioner of this Court. Notwithstanding that at the hearing before that commissioner the council did not oppose the changes to building 1, the commissioner refused to grant the modification. He also refused to approve laundry facilities. His decision was given on 4 December 2002.

15 . The applicant then appealed to a judge of this Court and the matter was heard by her Honour Pearlman CJ. In the hearing before her Honour, the council did not oppose the modifications relating to building 1 other than in respect of the laundry facilities. Accordingly, her Honour made an order granting the modifications to building 1, excluding the laundry facilities. There was no judgment delivered by her Honour, because the appeal in effect was upheld without any opposition from the council other than in respect of the laundry facilities. Her Honour’s decision was on 10 March 2003.

16 . The plans showing the building 1 as modified (figures 5, 6 and 7 – exhibit R) in effect replace the earlier plans which I approved, namely plans 3.2.2, 3.2.3 and 3.2.4 in exhibit A.

17 . In passing I note that there may be some confusion when a person is looking at some of the previous orders of the Court, because the plans 3.2.2 etc are preceded by the word “Exhibit”. That only occurs because within exhibit A these plans have a caption “Exhibit 3.2.2” etc.

18 . Shortly thereafter the applicant lodged a third application under s 96 on 17 March 2003. The letter of Mr Connelly dated 17 March 2003 gives details of the modifications. Briefly, the main modifications were that the applicant wished to have any reference to 6000 litres per day in the conditions replaced with 16,800 litres per day relating to sewage disposal. The applicant wished to increase the numbers of persons from 72 which were approved in the December 1998 consent to 112 persons and the applicant also sought a deletion of condition F7 which required the accommodation units not to contain laundry facilities.

19 . A fourth application to modify the original consent was lodged on 21 November 2003. This last modification application was to provide for areas where the treated effluent could be dispersed. Subsequently the applicant amended this fourth s 96 application so as to provide for only two areas where treated effluent would be dispersed, namely areas 3 and 4 shown on plan 4.7A revised 1-03-04, part of exhibit N2.

20 . The plan 4.7A would modify the earlier plan (4.7 in annexure A) that I approved in 1998 only in respect of the disposal of effluent. But there are some consequential changes that would need to be made to which I will refer.

21 . In the present proceedings, I have to determine under s 96 of the Environmental Planning and Assessment Act 1979 the abovementioned third application and fourth (amended) application.

22 . Both parties engaged competent and experienced engineers in relation to sewerage systems and groundwater management. The council retained Dr Martens and the applicant Mr D Bristow. These engineers, after much consideration and preparation of reports, have agreed that the existing sewage treatment plant is capable of processing effluent for 112 persons and that the treated waste water may be disposed of in an environmentally acceptable manner in areas 3 and 4. Dr Martens, for example, was of the opinion that the proposed modified development which would provide for 16,800 litres per day dry weather flow was appropriate for the number of persons proposed and that quantity could be properly discharged in areas 3 and 4. The sewage treatment plant itself can treat a flow of up to 18,100 litres per day.

23 . This is a considerable increase on the 6000 litres per day which was approved in December 1998. It was suggested on behalf of the council that the conditions relating to 6000 litres per day and to not having any laundry facilities were in effect fundamental conditions. However, it appears that the reason that “6000 litres per day” was put in the original consent was that there was some concern as to whether or not an exceedance of that quantity would result in designated development.

24 . The law is now clear that a sewage treatment facility that is ancillary to a non-designated use is itself not designated development.

25 . As regards the laundries facilities it was further submitted on behalf of the council that the provision of those facilities would enable the accommodation units to be used for holiday or residential accommodation that is prohibited.

26 . I should mention that on the subject land is zoned (for most of its area) 5a special uses, private education facility. Other parts are zoned 7d, 7a, 7j and 7f(1). The carrying out of residential development unrelated to a private education facility is a prohibited use, as are tourist or holiday cabins.

27 . My inspection of the subject site today indicated that extensive work has been done towards providing the buildings that have been approved. Quite a number of the buildings have been erected or are in the course of erection, and land restoration work has been carried out. The subject site has already been used on a day basis for groups that come for educational purposes. Conferences are planned overnight for later in the year.

28 . There is no evidence before me to suggest that the approved development or the development as proposed to be modified in the applications now before me would be used for an illegal purpose. It seems to me on what I have been provided and from my inspection that the proposed development will indeed be a beneficial private education facility in the Byron Shire and that the accommodation units will be an ancillary activity or use to the predominant or main purpose of a private education facility.

29 . The provision of clothes-washing machines that are of an environmentally friendly nature using a small quantity of water is a desirable and reasonable amenity to provide for those persons who are attending conferences at the subject land.

30 . Is the development as now proposed to be modified (in the third and fourth applications) substantially the same development as was approved on 8 December 1998? Having considered all the evidence, I am of the opinion that the development as proposed to be modified would be substantially the same development as originally approved. I have taken into account both qualitative and quantitative changes and have had regard to various decisions of this Court such as Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 and Tipalea Watson Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 253. Clearly, quantitatively speaking, there will be a large increase in the amount of effluent being disposed of in the areas 3 and 4. However, the evidence of the specialist engineers indicates that the nutrient levels in those areas will remain largely the same as at present having regard to the proposed sub-surface pressure compensating drip system that will be installed and having regard to the performance standards that would be required as conditions of consent.

31 . Also to be taken into account is that there is ample area on the subject site for the dispersal of effluent in these areas without affecting in any adverse way other areas of the site.

32 . There are some other matters that I wish to deal with, but at this stage I will indicate that I intend to grant consent, subject to conditions. One of the conditions that I understand the parties will confer about is that a vegetative corridor on the western edge of area 3 will be relocated further to the west. Area 3 itself will largely be grassland because the nutrient uptake will occur from the grasses that are planted above the dispersal pipes that will be located approximately 100 mm below the surface. When areas 3 and 4 come into operation, the existing areas 1 and 2 which are on hillsides will no longer be used. That will be a change but it is not a change to the development that is of great significance balancing other aspects of the proposed development.

33 . I have already referred to the changes that, generally speaking, were minor and that were approved by Talbot J and by Pearlman CJ. In considering whether there is a substantially different development, one has to take into account not only what is now proposed but also the changes previously approved, and I have done that and I am of the opinion that the proposed development will remain substantially the same as originally approved.

34 . One of the important factors in coming to that decision is that the buildings themselves are generally much the same as what were originally approved and their layout can be seen in exhibit NJ, which is an overlay of the modified buildings compared with the originally approved buildings. The modifications now proposed (including the provision of washing machines) do not alter the accommodation units. Those units are capable of readily accommodating four persons and it is proposed to modify the original conditions of approval that limited the number of persons to 72, so that 112 persons including staff, visitors and children may be accommodated as the maximum number on the site.

35 . The increase in density terms of the number of persons is very small when one considers the whole site; the density is approximately 1 person per ha. It would be a different matter if the site was more constrained in area or if there were other significant changes being made. The whole use will remain a private education facility with the buildings remaining substantially the same as originally approved. The proposed altered sewage treatment plant and changed method of dispersing the wastewaters are matters ancillary to the primary use of the land.

36 . There will be some other changes. For example, some additional carparking spaces will be provided, and they can readily be provided.

37 . The dispersal of wastewater on area 3 was of concern to Mr Kooyman. He does not have specialist qualifications in wastewater treatment or dispersal, and I accept the opinion of the two expert engineers called by the parties that any water which may reach the local wetlands or the SEPP 14 wetlands will be similar if not better in quality than the waters at the present time. That is because of the particular sewerage facilities that are proposed which are going to be carried out in accordance with quite detailed conditions.

38 . A question was raised as to whether there should be any conditions limiting the use of the accommodation units so as to be ancillary to the primary use of the land. In my opinion there is no need for additional conditions to the conditions that were originally imposed. It is a principle that the accommodation units must be used in an ancillary way to the primary purpose of the development being a private education facility. It would not be appropriate, and indeed it would be prohibited, for accommodation to be provided for example on the basis that persons could stay the weekend at the subject site if they simply watched a film for a half an hour relating to the environment. The primary use of the land in such a case would be for residential accommodation. There is no suggestion, as I indicated earlier, that that is likely to occur. From what I have seen on the subject site, the applicant and those who are principals behind the applicant appear to be doing fine work towards completing the proposed development.

39 . I consider it appropriate to grant the proposed modifications generally in accordance with draft orders that have been prepared and are contained in exhibit NP. It was agreed however that the parties would further confer concerning the fine-tuning of a couple of the conditions. I do not expect that there will be any disagreement between the parties as to the conditions; however if there is, I will determine the matter upon a further short hearing.

40 . I propose to adjourn the matter for making of final orders on 5 April 2004 at 9 am. Prior to that time the parties should submit to me a hard copy and an electronic version of the conditions if they are agreed. I may make some minor drafting changes to the conditions myself without making any substantive changes.

______________
A J Nott
Commissioner of the Court