Burke v Hawkesbury City Council

[2001] NSWLEC 222

Land and Environment Court

of New South Wales

CITATION:	Don Burke and [16] Others v Hawkesbury City Council & Ors [2001] NSWLEC 222
PARTIES:	APPLICANTS Don Burke and [16] Others FIRST RESPONDENT Hawkesbury City Council SECOND RESPONDENTS Reno Camilleri and Mary Camilleri THIRD RESPONDENT Menalie Pty Ltd
FILE NUMBER(S):	40058 of 2001
CORAM:	Sheahan J
KEY ISSUES:	Judicial Review :- challenge to development consent - designated development - finality - "natural waterbody"
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss77A, 79C Environmental Planning and Assessment Regulation 1994 cl 21(4), 38, 47, Rivers & Foreshores Improvement Act 1948 s 2
CASES CITED:	Corporation of the City of Unley v Claude Neon Ltd (1983) 49 LGRA 65; Gartner v Kidman (1962) 108 CLR 12; Genkem Pty Ltd v EPA (1994) 85 LGERA 197; Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468; Latta v Klinberg (NSW Supreme Court, No.8280 of 1976, 1 July 1997); Lend Lease Management Pty Ltd & Anor v Sydney City Council & Ors (1986) 68 LGRA 61; Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31; Mitchell v Vella & Ors (1998) 101 LGERA 333; Mison & Ors v Randwick Municipal Council & Ors (1991) 23 NSWLR 734; Murden v Port Stephens Shire Council (10023 of 1998,Sheahan J, 18 September 1998); Narrambulla Action Group Inc v Mulwaree Shire Counci & Ors (40168 of 1995, Bannon J 15 November 1996); Scott & Ors v Wollongong City Council & Ors (1992) 75 LGRA 112; Transport Action Group v RTA & Anor (1999) 46 NSWLR 598; Warringah Council v Ardel Ltd & Anor [2000] NSWLEC 7; Weal v Bathurst Council & Anor (2000) 111 LGERA 181
DATES OF HEARING:	6-7/09/2001, 17-18/09/2001
DATE OF JUDGMENT:	09/28/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr P McEwen SC (Barrister) SOLICITORS Burrell Solicitors FIRST RESPONDENT Mr J Ayling (Barrister) SOLICITORS Abbott Tout SECOND and THIRD RESPONDENTS Mr P Tomasetti (Barrister) SOLICITORS Storey & Gough

JUDGMENT:

DON BURKE and [16] OTHERS

Applicants

v

HAWKESBURY CITY COUNCIL

First Respondent

RENO CAMILLERI and MARY CAMILLERI

Second Respondents

MENALIE PTY LTD

Third Respondent

JUDGMENT

Introduction

1. In these class 4 proceedings, seventeen applicants challenge an approval granted by Hawkesbury City Council (“Council”) in respect of the proposed development of an intensive poultry farm near their properties.

2. The applicants seek a declaration that the relevant development consent (“DC”) is invalid, an order restraining the carrying out of building work pursuant to it, and an order for costs.

3. The court had the benefit of a comprehensive site inspection.

4. The subject land is an area of approximately 16ha at No.481 Creek Ridge Road, Glossodia (Portion 460 DP 751665, now lot 4602 DP 1006929). (The near neighbours give addresses of Glossodia or Freemans Reach).

5. The two second respondents (“the Camilleris”) and the third respondent, Menalie Pty Ltd (“the company”), all have as their registered address 418 Londonderry Road Londonderry. The Camilleris conduct a poultry farm on that site and have done so over the last 11 years, growing “meat birds” for “Baiada”. They are apparently unable to expand their operation on that land, and purchased the subject land in mid 1998, at the cost of $510,000, for the specific purpose of using it for poultry farming (see, generally, Mary Camilleri’s affidavit of 18 July 2001).

6. The relevant development application (DA 991375), which received the Council’s consent, was lodged by the Camilleris, with the consent of the company, and with the active assistance of a poultry consultancy owned by Greg Poole, on 9 September 1999.

7. There is no contest that the development is permissible with consent under the relevant planning instruments.

8. The DC, granted on comprehensive conditions, was issued by Council on 19 December 2000 (Exhibit H1 – its date is given wrongly in the Points of Claim as 12 December 2000).

9. These proceedings were commenced on 17 April 2001.

The relevant Act and Regulations

10. Section 77A of the Environmental Planning & Assessment Act 1979 (“EP&A Act”) provides as follows:

Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.

11. The relevant provisions of Schedule 3 of the Environmental Planning & Assessment Regulation 2000 (“the Regulation”) are as follows:

12. In Part 1, entitled “What is designated development?”, cl 21(4) provides:

Poultry farms for the commercial production of birds (such as domestic fowls, turkeys, ducks, geese, game birds and emus), whether as meat birds, layers or breeders and whether as free range or shedded birds:

(a) that accommodate more than 250,000 birds, or

(b) that are located:
(i) within 100 metres of a natural waterbody or wetland, or
(ii) within a drinking water catchment, or
(iii) within 500 metres of another poultry farm, or
(iv) within 500 metres of a residential zone or 150 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, odour, dust, lights, traffic or waste.

13. In Part 4, the definitions in cl 38 include:

Development site , in relation to a development application, means:

and, in relation to a development application for development involving alterations or additions to development (whether existing or approved), includes the actual site of the existing or approved development.

Waterbody means:
(a) a natural waterbody, including:
(i) a lake or lagoon either naturally formed or artificially modified, or
(ii) a river or stream, whether perennial or intermittent, flowing in a natural channel with an established bed or in a natural channel artificially modifying the course of the stream, or
(iii) tidal waters including any bay, estuary or inlet, or
(b) an artificial waterbody, including any constructed waterway, canal, inlet, bay, channel, dam, pond or lake, but does not include a dry detention basin or other stormwater management construction that is only intended to hold water intermittently.

14. In Part 5, the following relevant clause appears:

(i) the mean high water mark in tidal waters, or
(ii) the mean water level in non-tidal waters,
and the boundary of the development site.

15. The “development site” in this case has been clearly designated on the plans (Exhibit B1), and pegged on the subject land. It was observed on the view, and a further survey is before the court (Exhibit C6).

The applicants’ contentions

16. An early claim that the subject DA infringed cl 21(4)(b)(iv) of the Regulation was not pressed, and the class 4 application also refers to judicial review issues involving the taking into account of a report “with critical measurements erroneously stated”, failure to give proper consideration to the views of the DLWC, and Wednesbury unreasonableness.

17. The applicants bear the onus of proving their grounds of challenge to the consent, and, in the end, they pressed only two claims:

(a)

that the combined operation of s 77A of the EP&A Act and Schedule 3 of the Regulation required that this proposed poultry farm be considered as “designated development”, relevantly because the proposed development is less than 100m from a natural waterbody, and that the Camilleris’ DA should have been, but was not, assessed by the Council as “designated development”; and

(b)

that the consent offends the principles espoused in Mison & Ors v Randwick Municipal Council & Ors (1991) 23 NSWLR 734 (“Mison”), in that several matters regarding the Camilleris’ proposal were not finally determined by the grant of consent.

18. The applicants contend, in respect of (a), that the proposed development infringes the designated development provisions because an unnamed creek, flowing from a property numbered 5 (on survey diagrams – see Exhibit B1 and Exhibit B4), through properties numbered 4, 3 and 2, is a natural waterbody which is at some points less than 100m from the clearly defined development site on the neighbouring Camilleri land.

19. In respect of (b), the Mison claim, the applicants complain that three particular conditions of consent (Nos. 7, 8 and 11 in Exhibit H1), relevantly deferred various prospective impacts of the Camilleris’ proposal (see par 32 below).

What was before Council when consent was granted?

20. The Camilleris’ DA lodged with Council on 9 September 1999 was accompanied by:

· a statement of environmental effects (pp 41-49 of Mary Camilleri’s affidavit 18 July 2001);

· a surveyor’s contour plan (p 50 ibid);

· various other plans, photographs and drawings, indicative of elevations, distances, etc (pp 51-54 ibid);

· a “Water Balance” (or Soil and Water) report (Exhibit C2);

· a flora and fauna assessment report (Exhibit C1);

· a noise study (not before the court).

21. After public exhibition from 30 September to 1 November 1999, Council raised with the Camilleris a series of concerns, in a detailed letter dated 29 December 1999 (pp 55-61 of Mary Camilleri ‘s affidavit 18 July 2001). The Camilleris engaged relevant experts, and submitted to Council, during March 2000, a detailed response (pp62-64 ibid), and other materials, including a more detailed Dust, Odour and Noise Impact Assessment (Exhibit C3).

22. The proposal was reduced, on 13 March 2000, from 8 to 6 sheds (182,500 birds). Public exhibition occurred again between 23 (or 30) May and 6 (or 14) June 2000, and a list of objector and Council officer concerns was advised to the Camilleris, on 4 and 19 July 2000. A public community meeting was held on 20 July 2000. Further responses were provided by the Camilleris, and a submission was made by them to individual Councillors (see generally pp 62-78, and 113 of Mary Camilleri’s affidavit 18 July 2001).

23. The key conclusions of the Camilleris’ consultants were as follows:

(i) Benbow (Dust, odour and noise – Exhibit C3 ) says (p.iii):

Provided the listed safeguards are followed, and the planned farm operating and management practices are adhered to, there exists limited potential for excessive impacts on the surrounding community.

The development application should not be refused on the grounds of excessive dust, odorous or noise emissions.

(ii) Fiander (Soil and Water – Exhibit C2 ) says (p24):

The calculations carried out for the site at Glossodia indicate that it is feasible to establish a poultry development provided the matters and methods outlined in this report are carried out.

(iii) Conacher Travers (Flora & Fauna – Exhibit C1 ) says (p20):

The [development site] has been found to be of little habitat value and contains no significant trees. As such there has been no significant impact found upon ‘flora and fauna’ species …

24. Council officers reported, in detail, on the proposal, to Council’s meeting of 28 November 2000 (pp 80-112 of Mary Camilleri’s affidavit 18 July 2001). The report included proposed landscaping and landscaped earth banks to screen the sheds. All concerns expressed in the list of objections were dealt with. The questions of whether the DA was for “designated” and/or “integrated” development were posed, and answered in the negative (p84 ibid).

25. The Council officers’ EP&A Act s 79C consideration of the DA was detailed in an itemised way (pp 86ff ibid). The detailed recommendations of the Camilleris’ expert consultants were also set out, and noted or adopted in favourable terms. The Council officers reported having visited a recently established poultry farm in the Port Stephens Council area (see D & E Murden v Port Stephens Shire Council, 10023 of 1998, Sheahan J, 18 September 1998).

26. The officers’ report recommended approval on conditions.

27. At p 19 of that officers’ report (p95 of Mary Camilleri’s affidavit 18 July 2001), the following appears:

Staging of the development
From the comments made above it is evident that there is a need for an Environmental Management Plan (EMP) to be prepared as a condition of consent. An EMP is to incorporate the following:

· Any proposed management measures/practices identified in the Statement of Environmental Effects and reports that accompanied the application.

· Any recommendations or safeguards contained in the reports that accompanied the application.

· Procedures for logging and dealing with complaints from residents regarding the operation of the activity.

· Annual reporting on the compliance with the EMP and conditions of consent including appropriate measurements of noise and odour generated from the activity.

It is recommended that should Council support the application that the consent be issued as follows:

(a) A consent be issued for six (6) poultry sheds and associated works
(b) Construction certificate only be issued for two sheds being Sheds 1 and 2. Prior to issuing the construction certificate the EMP is to be submitted and approved.
(c) Construction certificate be issued for Sheds 3 and 4 only after a 12 month monitoring program (annual report referred to in the EMP) undertaken on the operation of Sheds 1 and 2 which verifies that the development still complies with NSW EPA regulations and other relevant legislation. Note that the construction certificate will not be issued if the recorded levels do not meet the relevant requirements.
(d) Construction certificate be issued for Sheds 5 and 6 only after 12 month monitoring program (annual report referred to in the EMP) of Sheds 1-4 which verify that the development still complies with NSW EPA regulations and other relevant legislation. Note that the construction certificate will not be issued if the recorded levels do not meet the relevant requirements.

This process is recommended as it provides Council with an opportunity to monitor the performance of the operation of Sheds 1 and 2 prior to issuing construction certificates to sheds 4-6. By doing this any assumptions made in the modelling process are verified and will allow an opportunity for liaison with the local community.

28. At p 22 of the report (p98 ibid), the following appears:

Visual Impact (issue raised by objectors)
There was concern that the proposed poultry farm would have a visual impact on the area. The proposed sheds will only be visible from the frontage of the subject property. The proposed poultry farm is to be conducted in phases with two sheds being constructed at a time with a minimum 12 month interval between shed construction. The presence of poultry sheds is not considered to create a visual impact in the area.

The proposed sheds run perpendicular to the road and will have a 1.5m earth mound including landscaping. Also the side curtains are green to assist in blending in with the landscape. The proposed sheds are also setback approximately 200m from the road to not be visually intrusive.

It is recommended that the proposed earth mound and landscaping (including mature tree species) be required to be carried out prior to the construction of any sheds, this should be included as a condition of consent prior to issuing the construction certificate for sheds 1 and 2.

29. At p 24 (p100 ibid), the officers’ conclusion is stated as follows:

The applicant intends to develop the proposed farm in a manner which will properly protect the environment and to manage it is accordance with current best practice principles. The proposed ‘minimum and tunnel’ ventilated sheds are considered to be the Poultry Industry’s best practice.

The applicant submitted dust, noise and odour reports which conclude that the proposed poultry farm complies with the various NSW EPA requirements.

In order to control the operation and ensure compliance with the recommendations contained in the various reports which accompanied the application, an Environmental Management Plan is required to be prepared. In addition, this will be further monitored by requiring annual reports prior to permitting the construction of Sheds 3 through to 6. This will ensure that the proposal will comply at all stages of the development.

The proposal also provides a development which is consistent with the surrounding landscape and is consistent with the objectives of the Rural 1(b) zone. The rural zoning encourages agriculture.

The issues raised by the objectors have been addressed and do not warrant refusal of the application.

If Council supports the recommendation for approval, conditions of consent are proposed which reduce potential impacts and facilitates good management practices.

30. The proposed landscaping and earthbanks were “depicted” on a site plan in the report (at pp 33-34/affidavit pp 109-110).

The consent and its conditions

31. Council resolved to accept the officers’ recommendation of approval on conditions, and the Notice of Determination issued on 19 December 2000 (Exhibit H1 and pp 114-123). The plans showing landscaping and earthbanks (p109-110) were stamped as part of the DC (see Exhibit H1).

32. From the very detailed conditions attached to the consent I now set out those which have some relevance to the subject matter of the applicants’ challenge, adding emphasis to the three conditions upon which the applicants particularly rely, namely Nos. 7, 8 & 11:

General
1. To confirm and clarify the terms of this approval, the development shall be carried out in accordance with the approved amended site plans 1 and 2 dated 13/3/00 and Chris Bratby, Drawing Number 228701 dated 11/1/00 submitted with Development Application No. M1375/00 and any supportive documentation, except as otherwise provided by the conditions of this consent.
Note : modifications to the approved plans will require the lodgement and consideration by this organisation of a separate application pursuant to Section 96 of the Environmental Planning and Assessment Act, 1979.
…
3. Prior to construction of the approved development it is necessary to obtain a Construction Certificate.
…
5. No excavation or site works shall be commenced prior to the issue of the construction certificate.
6. Prior to occupation of all the poultry sheds an occupation certificate is required.
Prior to Issue of Construction Certificate for Poultry Sheds 1 and 2

· All proposed management measures/practices identified in the Statement of Environmental Effects and reports that accompanied the application.

· All recommendations or safeguards contained in the reports that accompanied the application.

· Procedures for logging and dealing with complaints for residents regarding the operation of the activity.

· Annual reporting on the compliance with the EMP and conditions of consent including appropriate measurements of noise and odour generated from the activity.

8. Separate details of the proposed roofwater and surface water drainage system shall be lodged in duplicate for approval. Such details shall be approved prior to issue of construction certificate.
…

· Ecualyptus Tereticornis

· Eucalyptus Moluccana

· Melaleuca Armillaris

· Eucalyptus Cladocalyx ‘Nana’

· Callistemon Citrinus

· Hakea salicifolia.

12. Details of the earth tank are to be submitted to Council for approval.
13. The earth mound, landscaping and earth tank are to be constructed prior to issuing the construction certificate.
(a) Approval for a dwelling on the subject property is to be obtained prior to the issue of a construction certificate for sheds 1 and 2.
(b) Plans indicating earthworks on the site, including the terracing, to be provided.
Prior to Issue of Construction Certificate for Poultry Sheds 3 and 4
14. The submission of an annual report as detailed in the Environmental Management Plan. Should the report demonstrate verification of the predicted outcomes and compliance with the reports provided within the development application construction certificate will be issued for sheds 3 and 4.

Prior to Issue of Construction Certificate for Poultry Sheds 5 and 6

Prior to Commencement of Works
…
19. Erosion and sediment control devices are to be installed and maintained to ensure that there is no increase in downstream levels of litter, vegetation debris or other water borne pollutants in accordance with Council’s Development Control Plan 1/94 – Soil Erosion and Sedimentation.
…
During Construction
…
33. The construction of all vehicular traffic areas with a compacted crushed rock pavement and all necessary drainage. The section of the access from creek Ridge Road to the ring road around the sheds is to be sealed with a two coat hot bitumen seal. This section of the pavement is to be designed by a registered NATA laboratory.
Prior to Issue of Occupation Certificate
…

…
The Use of the Site
…
40. All landscaping shall be permanently maintained in a good condition and in accordance with the intent of the landscaping plan.
…
49. The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood with respect to noise, vibration, odour, dust, waste water, waste products or otherwise.
50. The poultry farm shall operate so as not to produce an offensive odour at the property boundary, or any other nearby boundary.
51. (a) The poultry farm shall operate such that dust particles do not exceed the prescribed standards under the Protection of the Environment Operations Act 1997 and associated regulations at the subject property boundary, or any other nearby boundary.
(b) Static filters to be installed on all external fans to remove dust particles subject to approval by the Director of Environment & Development.
52. All animal enclosures are to be maintained free of rodents and other vermin; maintained in a clean condition to avoid offensive odours, dust, or drainage problems; maintained to prevent the proliferation of flies, lice, fleas, and other insect pests; and enclosed so as to prevent the escape of birds.
53. The development shall be conducted in such a manner that the LA(eq) noise levels, measured at any point in accordance with the NSW EPA’s Industrial Noise Policy (2000), do not exceed 5 dB(A) (LAeq) above background noise levels with respect to noise amenity of residential dwellings and associated outdoor areas.
…
56. All roof water shall be captured and diverted to the existing dam. This is to ensure that no unnecessary erosion of the land, pooling of water, or pollution of the dam water will occur.
57. All stormwater runoff from the shed area shall be directed to the dam. The dam is to be constructed and maintained in accordance with Councils’ Development Control Plan for The Construction of Dams (1997). The dam shall be de-silted on an annual basis to maintain sufficient freeboard.
…

33. The required EMP and Landscape Management Plan (conditions 7 and 11) have now been submitted to Council (Exhibit C4 and Exhibit C5 – introduced into evidence as exhibits to Mary Camilleri’s second affidavit, dated 13 August 2001). A further consultant report (to meet condition 8) is being obtained. The Camilleris then intend to apply for their construction certificate. These reports/plans build upon what was in the DA reports and taken up by Council officers in their recommending report.

challenge (b) - The Mison question

34. Having just set out the relevant conditions of consent, it is convenient to deal with the second leg of the applicants’ challenge first, namely that based on an alleged lack of finality in the DC, by reason of at least conditions 7, 8 and 11 allegedly breaching the so-called Mison principle.

35. A DC must be “final in the disposition of the application”. Corporation of the City of Unley v Claude Neon Ltd (1983) 49 LGRA 65 (per Wells J).

36. The conditions imposed on the Camilleris’ DC are certainly comprehensive.

37. The NSW Court of Appeal’s decision in Mison is authority for the proposition that, if a condition of consent “has the effect of significantly altering the development … or leave[s] open the possibility that development … will be significantly different from” the DA, the development consent is not a consent to the DA (per Priestley JA at 737, but emphasis mine).

38. “Significantly” is a matter for judgment, and is a question of degree in the case at hand.

39. Clarke JA (at 740) said that, if a DC leaves for later decision an important aspect of the development which would alter the development in a fundamental respect, the consent does not finally determine the DA (emphasis mine again).

40. The relevant condition in Mison provided that the height of the project was to be reduced to the satisfaction of a town planner, and the Court of Appeal overturned the consent. See also Lend Lease Management Pty Ltd & Anor v Sydney City Council & Ors (1986) 68 LGRA 61, where the city planner was invested, by the consent, with power to choose which of two substantially different floor ratios was to be applied to the development.

41. In Scott & Ors v Wollongong City Council & Ors (1992) 75 LGRA 112 (“Scott”), the Court of Appeal held that a development consent was not invalid because the condition impugned required that the applicant shall carry out work in an attached plan “subject to final determination by council of that plan …”.

42. Samuels AP noted (at p 118) that it was:

…common … for some aspects …to be left for later and final decision … since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision.

43. The court in Scott held that the development consent finally resolved the use of the land and the character of the building. Samuels AP continued (at pp 118-119):

The present is just such a case. I agree with Mr Davison that the application and consent have finally resolved the particular use of the land and the specific character of the building; and the circumstances of that use have been substantially prescribed. But a number of matters ancillary to that use have been generally (although in some cases with a degree of precision) stipulated, with details left for later determination. Conditions 1, 4, 14, 16, 18, 19, 20, 21, 25 and 26, in addition to 27, fall within this category. These conditions differ as to the extent of the detail left to be settled, but arguably none of them is final.

However, what distinguishes them is that the exercise of the decision-making power they each contemplate will certainly not alter the development ‘in a fundamental respect’, nor will the development be ‘significantly different’ from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333. If I may quote the words of Barwick CJ in a somewhat different context in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437: ‘no narrow or pedantic approach is warranted’.

44. In Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31, the DC required a landscape management plan, an environmental plan including water issues, and compliance with Council requirements in respect of visual amenity. It was held by Stein J, and the Court of Appeal, that those matters were ancillary to the core purpose of the development and its consent, and resulted in no change to that purpose.

45. In Transport Action Group v RTA & Anor (1999) 46 NSWLR 598, the proponent altered its DA to reduce its detrimental environmental effect, but did not do a new environmental impact statement.

46. Mason P discussed relevant principles and authorities (at p 628ff, pars 1211ff) in the context of the power of modification. He said that the Mison line of cases is but one example of courts being responsive to the need to have some scope for movement on details (pars 125ff). He accepted the Mison principle, but that questions of degree are involved in its application.

47. His Honour said (at par 117 on p 629):

Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited.

48. He further said (at par 118) that Scott had held that: “Mison requires it to be shown that the impugned condition leaves open the possibility of a significantly different development”, and (at par 122 on p 630) that the Mison principle was not contravened by a condition requiring a management plan to address some issue in more detail.

49. In Weal v Bathurst Council & Anor (2000) 111 LGERA 181, Council granted a deferred commencement consent, but imposed no conditions in respect of noise or operating times. The question in the case was whether such issues were taken into consideration. Giles JA (at 204, par 95) recognised, in terms, that a landscape plan “might have been left for later resolution”, and cited Scott and Transport Action as his authorities.

50. In this case nothing is left for the EMP - and nothing appears in the draft EMP, as presented to Council, pursuant to the condition of consent - which affects the core purpose or nature of the development proposed or approved.

51. The situation in this case, therefore, falls clearly within the factual position presented and addressed in Scott, and the court concludes that the Camilleris’ consent does not infringe the so-called Mison principle.

52. Accordingly, the Mison leg of the applicants’ challenge to the Camilleri consent fails.

Challenge (a) - The waterbody issue

53. The court has heard conflicting expert evidence on the question of whether or not there is a relevant “waterbody” within the prescribed distance from the development site (see par 13 above), such that the Camilleri proposal would be rendered “designated development”.

54. There is a landform “feature(s)” on the nearby properties and water is seen from time to time running or laying in it. The physical character of the feature, as observed in the many photographs before the court, and on the site inspection, varies over its length.

55. It is not suggested that the landform feature is a lake or lagoon, or tidal waters, within pars (a)(i) or (a) (iii), nor an “artificial waterbody” within par (b), of the statutory definition of “waterbody” set out in par 13 above. The argument in this case has focussed upon par (a)(ii) of the definition, namely:

A natural waterbody including … a river or stream, whether perennial or intermittent, flowing in a natural channel with an established bed or in a natural channel artificially modifying the course of the stream.

56. The term “river” is defined in s 2 of the Rivers & Foreshores Improvement Act 1948 as follows:

River includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water and any affluent, confluent, branch, or other stream into or from which the river flows and, in the case of a river running to the sea or into any coastal bay or inlet or into a coastal lake, includes the estuary of such river and any arm or branch of same and any part of the river influenced by tidal waters.

57. Recognised “field handbooks”, to which the evidence refers (Exhibit B7), contain relevant definitions.

58. The “Soil Data Card Handbook”, authored by Morse & others in 1982, includes the following definitions:

Gully – an open depression with moderately inclined to very gently inclined floor and precipitous walls, eroded by channelled stream flow and consequent gravitational fall, and water-aided movement.

Streambed – the floor of a linear, generally sinuous open depression eroded and excavated by channelled stream flow. Part of a stream channel.

Stream channel – a linear, generally sinuous open depression, in various parts eroded, excavated, built up and aggraded by channelled stream flow. Comprises streambed, banks and bars.

59. The “Australian Soil and Land Survey Field Handbook”, authored by McDonald & others in 1990, defines the same concepts thus:

Gully - open depression with short, precipitous walls and moderately inclined to very gently inclined floor or small stream channel, eroded by channelled stream flow and consequent collapse and water-aided mass movement.

Stream bed - linear, generally sinuous open depression forming the bottom of a stream channel eroded and locally excavated, aggraded or built up by channelled stream flow. Parts that are built up include bars.

Stream channel - linear, generally sinuous open depression, in parts eroded, excavated, built up and aggraded by channelled stream flow. This element comprises stream bed and banks.

60. The respondents’ expert, Dr Wayne Erskine, distinguishes three different types of streams - “perennial”; “intermittent” and “ephemeral”.

61. Dr Erskine specialises as a “fluvial geomorphologist”, i.e. a geomorphologist who “concentrates on rivers, their forms, their patterns, and their deposits and process” (T7.9.2001 p67 L30-6). He defines a “river” as “a stream of flowing water that is contained within well-defined bed and banks, and that lays down water-deposited material” (T67 L39-41). He says that an ephemeral flow regime is one where the stream flows only “during and immediately after rain” (T68 L42-45), but an intermittent stream flows “for a longer period of time” (T68 L48-52).

62. The applicants’ expert, Mr Rick Morse, is a soil scientist and geomorphologist, practising as a consultant environmental scientist, but he is not a geologist (T14 L42-46), nor a “fluvial” specialist.

63. The evidence of both experts is based on expertise, experience and limited inspections of the relevant feature(s), and they have come to contrasting conclusions. Both were subjected to searching cross-examination on their written material, expertise, and areas of disagreement.

64. Water “runs” in the feature(s) from property 5 to 4 to 3 to 2 (as shown on Exhibit B1 and Exhibit B4 – see par 18 above). The owners of property 5 are not involved in the proceedings, but allowed the court to inspect the relevant part of their property on the view. Properties 4, 3 and 2 are owned respectively by the applicants Norman, Bennett and Burke. Property 5 is south and south-east of the Camilleri land, 4 and 3 are east of it, and 2 is north and north-east of it.

65. Applicant Warren Norman owns, and has resided on, property 4 (49 Reserve Road) since 1991. He needs a lot of water, because he runs at least three horses, and each drinks up to 50 litres per day. In his 10 years on his property he has gone “down the paddock” each day. He has seen the watercourse “completely dry on only two or three occasions”, and the rest of the time there has always been water in pools, such as that near his southern neighbour (No.5). “For at least six months of the year, on average, the stream flows”. He has never seen the dam dry and only once did it almost dry up. Its spillway “has always remained boggy”.

66. Applicant Deborah Bennett owns, and has resided on, property 3 (53 Reserve Road) since August 1993. She observes the “stream” daily. She says that it was completely dry for 6 to 7 months in 1993-4. She says water flows “in the stream on my property long after rain has fallen” – for at least two weeks. The stream flows “for about half of the year”.

67. Carol McGarry lives nearby (478 Creek Ridge Road). She has kept daily rain gauge records since 1996, and annexed them to her affidavit of 12 September 2001.

68. Applicant Jaqueline Verzi lives at 65 Reserve Road, and she deposed to a conversation with Erskine on 3 August 2001 about the contents of her rain gauge.

69. Dr Erskine adhered to his view that the relevant waterbody feature is ephemeral and not intermittent, and, therefore, does not result in the Camilleri development being “designated” (see also T80 L20-33). He divides it into two features, one beginning on property 5 as a “hillslope hollow”, best defined as a “drainage depression” (report p4). Drainage depressions convey runoff waters only during and immediately after periods of heavy rainfall.

70. On properties 2, 3 and 4 the “second” feature is more of a “creek” draining a larger catchment. He distinguishes its features in s 3.2 of his report and concludes (pp 5-6):

The drainage features in properties 2, 3 and 4, described using the terminology outlined above, are, in downstream sequence:
Property 4

· Rapidly alternating drainage line and drainage depression in the upper 80 m;

· Excavated channel for 40 m;

· Farm dam for 20 m;

· Ill-defined drainage depression for 40 m;

Property 3

· Continuation of the ill-defined drainage depression for another 45 m;

· Drainage line for 50 m;

· Discontinuous gully for 80 m;

Property 2

· Continuation of the discontinuous gully for 115 m;

· Drainage depression to the farm dam.

The cited distances were scaled from the above survey plan. This downstream sequence clearly highlights the complex and discontinuous nature of the drainage feature.

71. His opinion is summarised (report p8) thus:

In my opinion, the drainage depression in properties 5, 4 and 481 Creek Ridge Road (i.e. Feature 1) is not a waterbody or river because:

· there is no channel with contiguous, clearly defined bed and banks;

· there are no fluvial bedforms or aquatic habitats, such as pools and riffles;

· flowing water is generated so rarely for very short periods of time, resulting in ephemeral flow regime;

· ephemeral flow regimes are excluded from the definition of river;

· the catchment area is so small that it is incapable of generating sufficient groundwater or soil water flow to maintain a saturated drainage depression for any period of time;

· runoff is so minor that it is incapable of eroding and/or maintaining a channel; and

· there are no indicators of wet conditions for any significant period of time in the drainage depression, such as water tolerant plants, flow structures, sedimentary deposits or crayfish mounds.

In my opinion, the drainage depression, drainage line, gully and farm dam in properties 2, 3 and 4 (i.e. Feature 2) are not a waterbody because:

· there is no contiguous channel with clearly defined bed and banks, only recent gullied sections due to local human disturbances;

· flowing water is ephemeral and is likely to be generated rarely for short periods of time immediately during and after rain;

· ephemeral flow regimes are excluded from the definition of river;

· there is insufficient groundwater or soil water flow to maintain a saturated drainage depression for any period of time

· runoff is so low that it is incapable of generating sufficient tractive force (i.e. energy) to erode and maintain a continuous channel.

72. Mr Morse’s opinion is summarised (in pars 4-5 of his affidavit of 6 September 2001) as follows:

4. … there are visible signs of a stream existing on Property 5. Downstream on Properties 4, 3 and 2 interference by man and animals has obliterated most of the signs of a stream. In my opinion, were it not for these activities which have artificially modified the watercourse, the features that define a stream would also be present today on these properties.
5. I am satisfied that the subject watercourse is a natural stream occupying a natural channel on Property 5 and the upper part of Property 4. On the lower part of Property 4, it is a natural waterbody occupying an artificially modified channel. On Property 3 gullying has replaced much of the original natural channel. The gullying is the result of natural processes caused by clearing of the land and man-related factors but the channel has not been directly artificially modified. On Property 2 the streambed banks appear to have been levelled with machinery and here the subject watercourse is also a natural waterbody occupying an artificially modified channel.

73. He had said in the Summary (on p (ii)) of his Statement of Evidence (Exhibit B2):

Following the definitions expressed in Morse et al (1982) and McDonald et al (1990), in my opinion the open depression contains:

· A stream channel and stream bed on Property 5

· A stream channel and stream bed on Property 4, except where destroyed through construction of a farm dam

· A stream channel and stream bed, and a gully on Property 3

· A drainage depression on Property 2.

For most of its length, though, the landform element is an incised feature, dynamic, and with fluvial, cyclic erosion and deposition processes occurring. These processes are visually evident throughout these properties, but are most evident where human-related activities have not affected them.

In addition, I believe that what is observed conclusively satisfies the legal description of a river or stream contained in Schedule 3 of the Environmental Planning & Assessment Regulation 2000. Here, a natural waterbody includes ‘a river or stream, whether permanent or intermittent, flowing in a natural channel with an established bed or in a natural channel artificially modifying the course of a stream’. Clearly, the landform elements here are fluvial, flow intermittently and include a natural channel with an established bed.

74. Mr Morse’s conclusion was stated thus (par 5 p 13):

In my opinion, the open depression through which water drains on Properties 3, 4 and 5 contains, geomorphologically, a river or stream. I believe that this also satisfies the legal description of a river stream contained in Schedule 3 of the Environmental Planning & Assessment Regulation 2000. Here, a natural waterbody includes ‘a river or stream, whether permanent or intermittent, flowing in a natural channel with an established bed or in a natural channel artificially modifying the course of a stream’. Clearly, the structure here is intermittent, flowing in a natural channel and with an established bed.

75. In Mitchell v Vella & Ors (1998) 101 LGERA 333, I held that, for the purposes of the Regulation, a “waterbody” must exhibit features of continuity, permanence and unity, and requires “identifiable margins”. See 344-348, where I discussed, and relied upon, Gartner vKidman (1962) 108 CLR 12, Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468, Narrambulla Action Group Inc v Mulwaree Shire Council & Ors (40168 of 1995, Bannon J, 15 November 1996), and a judgment of Lee J in Latta v Klinberg (NSW Supreme Court, No.8280 of 1976, 1 July 1997).

76. Talbot J came to similar conclusions about a “waterbody” in Warringah Council v Ardel Ltd & Anor [2000] NSWLEC 7. His Honour relied on Knezovic, and referred also to the definition of “waters” in relevant pollution provisions, and to the distinction drawn between “stream” and “river” also in Genkem Pty Ltd v EPA (1994) 85 LGERA 197.

77. I can see no reason at all to depart from the reasoning in all those cases on this occasion.

78. I am satisfied that the subject “waterbody”, if it can be accurately so described, carried water only ephemerally, if at all, and so does not fit within the relevant definition in the Regulation. With great respect to Mr Morse, I prefer the demonstrated specialist expertise, and more forceful evidence, of Dr Erskine on these matters. The local residents corroborate his view, albeit that they testify to more frequent runoff than Dr Erskine would have expected.

79. Given that conclusion, I need not deal with Mr Ayling’s argument that the waterbody is not such (i.e. it has a “high bank” or “mean water level”) as to allow the necessary measurement required by cl 47 of the Regulation, nor his submission that the evidence suggests that any channel present in the neighbouring properties might itself be characterised entirely as “artificial”.

80. The court concludes, therefore, that the “designated development” ground of challenge to the Camilleris’ consent must also fail.

Conclusion

81. Accordingly, the application is dismissed, and the applicants, having been totally unsuccessful, are ordered to pay the respondents’ costs.

82. The exhibits may be returned.