Chambers v Maclean Shire Council
[2002] NSWLEC 1
•01/14/2002
Reported Decision: 117 LGERA 422
Land and Environment Court
of New South Wales
CITATION: Chambers v Maclean Shire Council & Ors [2002] NSWLEC 1 PARTIES: APPLICANT
Anita ChambersFIRST RESPONDENT
Maclean Shire CouncilSECOND RESPONDENT
THIRD RESPONDENT
Paul Smith
Yumi SmithFILE NUMBER(S): 40140 of 2001 CORAM: Sheahan J KEY ISSUES: Judicial Review :- Preliminary question determined - permissibility - construction and application of SEPP 62 - principles of construction - meaning of word "area" in its context - conclusion reasonably open to consent authority LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s25(3) & s 76B
Fisheries Management Act 1994 s 144
Interpretation Act 1987 s 34(1)(a) and s 35(2)(c)
Local Government Act 1993
State Environmental Planning Policy 62CASES CITED: Londish v Knox Grammar School (1997) 97 LGERA 1;
Saraswati v R [1991] ALR 193;
Vanmeld Pty Ltd v Fairfield City Council [1997] NSWLEC 200DATES OF HEARING: 28/11/2001 DATE OF JUDGMENT:
01/14/2002LEGAL REPRESENTATIVES: FIRST RESPONDENT
APPLICANT
Ms S Winters (Barrister)
Mr J B Maston (Barrister)
Pickering Priestley (Solicitors)
SECOND AND THIRD RESPONDENTS
No appearance
JUDGMENT:
ANITA CHAMBERS
Applicant
v
MACLEAN SHIRE COUNCIL
First Respondent
Second Respondent
Third Respondent
Introduction
1. In these class 4 proceedings Ms Chambers challenges a grant of consent by the first respondent (“Council”) to the second and third respondents (“Smith”) for the development of a prawn farm and research station. (Related class 1 proceedings have now been disposed of – see matter 10604 of 2001).
2. The proposed farm/station will occupy virtually the whole of a 9.6ha block of waterfront land, in lot 12 deposited plan 1009500 School Road, Palmers Island (“the subject land”), on the Clarence River on the NSW North Coast (Exhibit M1 fol 8, and T31 L42-44).
3. There are apparently two other prawn farms nearby (Exhibit M1 fol 75), and Council granted the challenged consent on 11 July 2001, subject to conditions.
4. State Environmental Planning Policy No.62 – Sustainable Aquaculture (“SEPP 62”) is agreed between the parties to apply to the relevant development application (“DA”) and consent (“DC”). Most intensive aquaculture development is “designated development”, except that which attracts the application of SEPP 62.
5. In this judgment the court is dealing only with the agreed separate trial, as a preliminary question, of paragraphs 1-5 in the applicant’s Amended Points of Claim.
6. As leave was granted at the hearing for the Council to amend its Points of Defence to raise its defence of discretion, the court proposes to make no orders in the proceedings at this stage, but merely to deal with the issue, as it is put in par 4 of the Amended Points of Claim, in which the applicant asserts that Smith’s:
development is not permissible because the proposed site does not meet the minimum performance criterion that elevation be greater than 1 m AHD as prescribed by Clause 7 and Part 2 of Schedule 1 of SEPP 62 .
7. It was apparently known from pre-lodgement negotiations about the Smith proposal that about 20% (but c.f. par 47 below) of the subject land was below 1m AHD and it was proposed that the land would be filled to a height sufficient to prevent floods inundating the farm ponds, which would be established above the 1m AHD level (see Exhibit M1 fol 14 item (f), fols 175-177, and T35 L5-T36 L31).
8. Regrettably, Smith has taken no active part in the proceedings, other than an occasional attendance when the matter has been before the court. They have filed no notice of appearance, “submitting” or otherwise. Their notice of motion for expedition did not proceed because they did not attend on the return day. Mr Smith’s affidavit in support of that notice of motion asserted that he is “a research (sic) and senior lecturer at the University of Western Sydney with more than 15 years experience investigating issues in prawn farming and aquaculture in Australia and overseas”.
9. As the court is satisfied that Smith is in relatively frequent contact with both the applicant and the first respondent about the proposal and the challenge, I agreed to deal with the preliminary matter in Smith’s absence.
10. As pond-based aquaculture, the Smith proposal is permissible, with consent, if it complies with the “site location and operational requirements” set out in Part 2 of Schedule 1 to SEPP 62, known as the “Minimum Performance Criteria” (see cl 7). The site location requirements are set out in Division 1 of Part 2 of Schedule 1, and the operational requirements in Division 2.
11. The issue before the court at this stage is whether the Smith development conforms with the minimum performance criteria, especially the requirements of cl 4 of Schedule 1 (T28 L36-41). The applicant complained that the Council incorrectly determined that it did so conform, relying, with the encouragement of the Department of Urban Affairs and Planning (“DUAP”), on Acid Sulphate Soils (“ASS”) maps. If the court accepts that SEPP 62 is based on actual AHD levels on site, and not on the approximations or generalisations in the ASS maps, the development is not permissible (T28 L52-55).
12. The question was formulated by counsel for the Council (T11 L50ff) on the basis of whether it was reasonably open to Council to determine that the Smith proposal was permissible. The applicant preferred to formulate the question as one of actual permissibility – if the Smith proposal is not permissible, it is not open to Council to determine that it was. The applicant argues that, for the proposal to be permissible, the subject site must in fact be above 1m AHD, not just located on a map showing it to be within an area generally above 1m AHD (T29 L58-T30 L2).
13. The question before the court, therefore, turns on the correct construction of the requirements and other provisions of SEPP 62, to which I will turn in the next section of this judgment. The Council says that the SEPP’s AHD requirements refer to “area” in a broad sense, whereas the applicant says that compliance with those requirements must be viewed in the context of “area” construed in the narrower sense, viz “area of the site”.
14. The Smith proposal will be described in more detail later in this judgment. While it is not expected to disturb acid sulphate (or “sulfate”) soils on the site, there is a high probability of such soils within 1m below natural ground level (Exhibit M1 fols 53 and 56).
15. It is also clear from the evidence that the AHD levels shown on ASS maps may be incorrect. Indeed, DUAP expressed the view (Exhibit M1 fol 203) that local variations in elevations should not preclude council’s permitting such development.
SEPP 62
16. SEPP 62 was gazetted on 23 August 2000, and its aims and objectives are set out in cl 3 in the following terms (some emphasis added):
(a) to encourage sustainable aquaculture in the State, namely, aquaculture development which uses, conserves and enhances the community’s resources so that the total quality of life now and in the future can be preserved and enhanced, and
(b) to make aquaculture a permissible use in certain areas for which a comprehensive and integrated regional aquaculture strategy has been developed (being a strategy that incorporates the relevant Aquaculture Industry Development Plan under the Fisheries Management Act 1994 and the assessment regime for integrated aquaculture development), and
(c) to set out the minimum site location and operational requirements for permissible aquaculture development (the minimum performance criteria ), and
(d) to establish a graduated environmental assessment regime for aquaculture development based on the applicable level of environmental risk associated with site and operational factors, and
(e) to apply the Policy in the first instance to pond-based and tank-based aquaculture development in the North Coast region of the State following the preparation of a strategy for that kind of aquaculture development in that area .
17. SEPP 62 applies, pursuant to cl 5 (some emphasis added):
(a) in relation to pond-based or tank-based aquaculture – to the parts of the State described in Schedule 1, and
(b) in relation to natural water-based aquaculture – to the parts of the State described in Schedule 2.
18. As the subject development is pond-based aquaculture, the relevant schedule of SEPP 62 is Schedule 1, cl 1 of which makes clear that SEPP 62 applies to this respondent Council’s area of responsibility.
19. Other relevant clauses of SEPP 62 provide as follows (some emphasis added):
7. (1) This clause applies to development for the purpose of pond-based aquaculture , or tank-based aquaculture, to which this Policy applies.6. (1) In the event of an inconsistency between this Policy and another environmental planning instrument whether made before or after this Policy, this Policy prevails to the extent of the inconsistency, subject to section 36(4) of the Act.
(2) State Environmental Planning Policy No.1 – Development Standards does not apply to aquaculture development to which this Policy applies.
(2) A person may carry out any such aquaculture development with development consent if it complies with the site location and operational requirements set out in Schedule 1 for the development (the minimum performance criteria ).
(3) The requirements set out in Schedule 1 are minimum requirements and do not limit the matters a consent authority is required to take into consideration under the Act or the conditions that it may impose on any development consent.
…
10. In determining a development application for aquaculture development to which this Policy applies, the consent authority is to take into consideration such of the provisions of any aquaculture industry development plan as are relevant to the subject of the development application.
11. Aquaculture development to which this Policy applies that is not permissible under this Policy with development consent is prohibited.
12. (1) For the purposes of this Policy, the Director-General is to publish in the Gazette a project profile analysis for any particular kind of aquaculture development in any particular part of the State .
(2) A project profile analysis is a matrix of environmental and operational criteria for ranking the level of environmental risk in relation to site location and operational attributes of aquaculture development. There are to be 3 levels of risk for each attribute (Level 1, 2, or 3 in ascending order of risk).
(3) The criteria in a project profile analysis are to be consistent with the relevant aquaculture industry development plan.
(4) A project profile analysis must be reviewed by the Director-General when the relevant aquaculture industry development plan is amended or replaced.
13. (1) For the purposes of determining the level of assessment of applications for development consent under this Policy, the proposed aquaculture development is to be categorised, by the consent authority in accordance with the relevant project profile analysis, as follows:
(2) The relevant class is to be determined as follows:
(3) The consent authority is not to consent to aquaculture development under this Policy unless it has first categorised the development in accordance with this clause after receiving adequate information from the applicant for that purpose.
20. Part 2 Division 1 (clauses 2-7) of Schedule 1 sets out “Site Location Requirements”, and Division 2 (clauses 8-12) the “Operational Requirements”.
21. Clause 2(1) of that Schedule provides that “pond-based aquaculture” may take place “within areas zoned for rural purposes”.
22. Clause 4(1) provides that “estuarine pond-based aquaculture” may take place “within an area that is above 1m AHD and below 10m AHD”. It is common ground between the parties that the Smith proposal is all below 10m AHD (T15).
23. The note to cl 4 of Schedule 1 says “AHD for areas may be sourced in the Acid Sulphate Soils Risk Maps published by the Department of Land and Water Conservation”.
24. Clause 9 of Schedule 1 provides that “ponds, raceways or dams capable of being drained or pumped and then completely dried” must be used for pond-based aquaculture.
The application of SEPP 62 to the Smith proposal
25. The regulatory regime established by/under SEPP 62 is amplified in comprehensive strategy documents, gazetted in August 2000, and entitled “NSW North Coast Sustainable Aquaculture Strategy” (Exhibit C4), but it must be remembered that the strict provisions of SEPP 62, in terms, prevail over the contents of the strategy documents to which I have been referring.
26. As the foreword to the suite of documents says, the strategy resulted from a “whole-of-government approach”, to preparation of “this important regional planning document”, described by the three relevant Ministers as “a landmark for coastal land based aquaculture”.
27. The foreword indicates that the strategy will help local councils and other regulatory agencies in assessing aquaculture development proposals in a streamlined way, and the strategy is made up of two interlinked components – a “best management” component, and an “integrated approvals” component – so that projects can be established, and operated in an efficient, sustainable manner.
28. The best management component provides the basis for aquaculture industry development plans (“AIDP”) to be formulated under the provisions of the Fisheries Management Act 1994. An AIDP identifies best management for business planning, species selection, site selection and design planning and operation of the facility, and includes performance requirements for relevant environmental regulations.
29. Based on the best practice in the AIDP, a “project profile analysis” provides an upfront preliminary assessment of the likely level of risk to the environment from the proposal. (p iii of Exhibit C4). A project profile analysis was prepared for the Smith proposal (Exhibit M3).
30. “Lower level risk” proposals will require only a Statement of Environmental Effects (“SEE”) to demonstrate that they comply with best practice. Those proposals identified as “high risk” in a profile analysis become “designated developments”, requiring submission of an Environmental Impact Statement (“EIS”). The Smith DA was accompanied by a SEE.
31. The strategy provides for integrated approvals under the Environmental Planning & Assessment Act 1979 (“EP&A Act”), and Council’s planning staff categorised the Smith proposal as a “Class 2 Non Designated Development”, in accordance with clause 13 of SEPP 62 (Exhibit C2 p7).
32. The strategy documents (Exhibit C4) include the AIDP developed for the North Coast (see pp 9-13), and it contains sections entitled business planning, species selection, site selection, design and planning, operating the farm, integrated approvals, project profile analysis, and assessment guidelines.
33. In the “site selection” section, the following text appears on the subject of elevation (p66 of Exhibit C4):
For estuarine ponds, the height above sea level of land is a good indicator of a number of important factors such as:
· Land above 2 m AHD is less likely to contain acid sulfate soils and land below 1 m AHD is likely to have significant acid sulfate soils issues
· Ponds on land located higher than 10 m AHD will involve expensive pumping costs
· Tidal and flooding inundation is likely to occur on land below 1 m AHD
· Ponds on land below 1 m AHD are likely to have problems with draining and drying and ASS.
Preferred location : For estuarine ponds, land located between 2-10m AHD.
34. The “project profile analysis” is dealt with at pp 178-204 (of Exhibit C4). As the overview states (p 178):
The Project Profile Analysis provides three ‘sieves’ to evaluation options:
· The Minimum Performance Criteria provides the first environmental sieve for selecting sites and project characteristics. These must be met in order for the project to proceed.
· The Site Selection Criteria (Tier 1 and Tier 2) provide the next two environmental sieves to determine the acceptability of risks. Tier 1 information is available from Government or Council sources. Tier 2 information will need to be obtained from site investigation or studies.
· Following the selection of a site, Operational Selection Criteria (Tier 3) provide the next ‘sieve’ to evaluate various options including species, layout and operation factors. The Tier 3 evaluation can serve as a cost-effective device to determine the relative risk associated with species, design and operational options and to assist in deciding if certain options should be excluded from further consideration.
35. The “minimum performance criteria” (set out in more detail at p195), refer to “AHD as sourced in ASS Risk Maps 1”.
36. The “site evaluation” section (p 196) makes clear that, at a Tier 1 level of risk assessment of ponds for estuarine ponds, a site elevation of 2-10m AHD satisfies level 1. An elevation of 1-2m AHD will be level 2, if the project is less than 5ha of pond area, and level 3 is 1-2m AHD if more than 5ha of pond area.
37. Proposals which disturb more than 1 tonne of acid sulfate soils require a supporting acid sulfate soils management plan, consistent with the Acid Sulfate Soils Manual.
38. The relevant map for the Smith proposal is before the court (as Exhibit C3), and it is common ground that the appropriate classification of lot 12 is “At2”. The legend to the map leads one to the conclusion that the landform process class is alluvial, the landform element is levee toe, and the elevation is 2-4m approximate AHD (level “2”). There are guidelines issued for the use of the maps (also included in Exhibit C3), and the applicant draws attention, in particular, to s 3 of the guidelines “How the Acid Sulfate Soil Risk Maps were prepared”. The guidelines point out (p2):
The mapping has been designed to provide information on acid sulfate soil distribution and indicate land uses which are likely to create an environmental risk by disturbing ASS. The maps will assist with land management and the environmental planning of landscapes in coastal NSW.
39. It is proposed to constantly update the ASS maps so that they may form the basis for a series of planning maps (see p4). The document points out:
Initially, acid sulfate soils were mapped somewhat conservatively. Because of the amount of damage that could be done by disturbance of even small amounts of acid sulfate soil, it was decided to map environments as being low probability of risk in all areas where coastal acid sulfate soils could conceivably be found within the depths indicated…
Further, the first edition risk maps relied on relative elevations provided as spot heights on 1:25,000 topographic maps. In some instances, the spot heights were questioned. For the second edition risk maps, air photos were examined again to re-assess elevations and the likelihood of environments with acid sulfate soils.
40. The guidelines indicate that the Yamba map was altered between its first and second editions.
The applicant’s case
41. The applicant contends:
(1) that the “project profile analysis” of the Smith development does not meet the requirements of SEPP 62;
(2) that the ASS maps cannot be determinative, because their scale does not determine the elevation of land under 10m AHD, and, consequently, they show only one end of the permissible elevation range of 1-10m AHD; and
(3) that, as virtually the entire Smith site is to be occupied by prawn ponds and supporting operations, the fact that any of that used area is below 1m AHD is sufficient to take the site outside SEPP 62, by virtue of the application of cl 7(2).
42. The applicant’s central submission is that, given precise elevations identified by survey, despite indicative elevations inconsistent therewith on the ASS maps, the Council should not regard the Smith proposal as permissible, and was in error determining that the development met the minimum performance criteria. The actual AHD was known to the Council from the survey material provided by the Smiths, and did not accord with what the ASS map said for the relevant district. The note to the relevant provision of SEPP 62 is indicative only and does not require a Council, when in possession of better information, to rely only on the ASS maps.
43. In support of the contention that actual survey information (such as included in Exhibit C1), indicating that some of the subject land was below 1m AHD, was actually before the Council, the applicant points to several documents in the Council’s bundle (Exhibit M1).
44. The applicant herself deposed that the second respondent told her that the document she submitted to her consultant surveyor Anthony Richard Riordan was the survey which Smith placed before the Council. Smith actually gave to the applicant the documents she passed on to Riordan, representing them to be the same as those he gave to Council. The survey documents so submitted indicate the whole east end of the Smith block to be below 1m AHD.
45. The ASS map classifies the majority of the site as being approximately 2-4m AHD. According to the survey document, the only portion of the land higher than 2m AHD is the corner at the western boundary near the riverbank being on the levee toe. (See also T25 L25-47). In arriving at his expert comments on the subject matter of these proceedings, Riordan had before him two documents from Smith’s advisors, Yamba Surveys (see Exhibit C1). It is clear from those documents that some points on the subject land are below 1m AHD.
46. Assuming the survey by Yamba Surveys to be accurate, and, qualifying his opinion with the comment “This opinion is based on the assumption that the requirement is for the whole of the land parcel to be within the defined limits”, Riordan concluded “that Lot 12 in DP 1009500 is not within an area defined by the AHD limits as specified”.
47. Riordan notes that the total land area in lot 12 is 9.246ha according to the title diagram, and concludes that 3.82ha (or 41%) of the land is at or below 1m AHD.
48. Riordan further opines that SEPP 62, in the note to cl 4 of Schedule 1, evinces an intention that the ASS maps be only “a preliminary guide for initial land use planning purposes only”. He notes that the relevant map bears a specific disclaimer in this regard, namely that, being based upon the 1:25,000 map series, it “cannot be relied upon for any accurate land assessment procedure”. He continues “Level information quoted within the Map is also specifically stated as approximate AHD levels only”. He concludes with a note that SEPP 1 cannot be applied to vary the numerical standards required by SEPP 62.
49. The stamped plan in the development consent (Exhibit M2) is similar to one of the documents provided to Riordan, but not exactly the same: Exhibit M2 bears reference “Dwg No. A2/3”, whereas the relevant part of Exhibit C1 is “Dwg No.A2/2”, but no particular differences between them were drawn to the Court’s attention during the hearing.
50. There is some evidence (affidavit of Simon Priestley, 26 November 2001) that DUAP advised the Council that instead of intervening in these proceedings, it was recommending to the Minister that it be directed to prepare an amendment to SEPP 62. That advice is confirmed in a letter to the Council’s solicitors dated 26 November (ibid, Annexure ‘C’) which says, in part, that the Director-General is recommending to the Minister a draft amendment “in order to clarify the means of identifying AHD Levels for estuarine and pond-based aquaculture”. The letter continues:
The proposed effect of the draft amendment is to provide that, where other minimum performance criteria in Schedule 1 are also satisfied, estuarine, tank-based and fresh water aquaculture is permissible with consent within an area that is above the level identified on the Acid Sulfate Soils (‘ASS’) Risk Map as being above 1m AHD. The proposed purpose of the amendment is to clarify the Department’s intention that, for the purpose of SEPP 62, AHD levels are sourced from the ASS Risk Maps.
51. The letter concludes:
As the proposed amendment is of a technical and non-controversial nature, the Department expects that the Minister will deal with the recommendation expeditiously.
Other documentary evidence regarding the Smith proposal
52. The Executive Summary of Smith’s SEE includes the following description of the project (Exhibit M1 fol 7:
It is planned to convert the site into a modern, ecologically sustainable prawn farm. A total of 4.5 ha of the farm will be set aside for ponds: 2.5 ha of ponds will be for growing prawns to harvest, 0.25 ha of ponds for broodstock prawns, 0.5 ha will be for effluent treatment, and 1.25 ha will be for water storage. Also a total of 2.25 ha will be set aside for regrowth and revegetation of native plants and animals; 1.25 ha will (sic) for a wildlife habitat and 1.0 ha for a wetland habitat. A further 2.25 ha will be used for roads, walls, miscellaneous areas and a farm shed. The remaining 0.6 ha will be set aside for a future Development Application which will provide details of the dwelling, hatchery, farm shed, machinery shed and laboratory.
53. The SEE contended that the project by virtue of its project profile analysis was a level 2 integrated development, but that possible impacts were dealt with in the SEE. The SEE went on to point out (at fol 14 of Exhibit M1):
(f) The site will be developed to a height that will prevent floods from inundating ponds. Excess rainwater that falls in the ponds will overflow from the monk drains into the discharge canals and accumulate in the treatment system. In the event of very high rainfall, which can occur in late summer and autumn, excess water will be pumped from the sump of the treatment pond and released into the Clarence River. At these times the water will be mainly fresh rainwater that has spilled over from ponds and should not be classified as farm effluent for the load based licensing agreement with the EPA. This issue should be negotiated with the EPA.
(g) Management and design of the farm to prevent seepage has been discussed earlier and is based on the proper construction of pond walls and bottom to prevent seepage. The boundary drain will ensure that any seepage through the walls is carried away to the river. As noted already, the farm water table can be quite saline (see graph in Appendix J2). So seepage, if it does occur, would have no negative impact on those existing drains.
54. Then (ibid at fol 19):
Soil profiles are provided in Appendix J6. Potential acid sulfate soils (PASS) do exist in soil layers beneath the farm, however the development will not disturb them. Agricultural lime will be available on site during pond construction should PASS is disturbed during construction. Lime will be spread over the PASS and then soil will be spread over the area.
55. Among the environmental issues considered in the SEE the following appears (at fol 26):
NSW EPA requests that if the ponds are will (sic) be constructed in flood prone land, details of the pond overflow level and the predicted 1 in 100 year flood level should be provided. In relation to this issue, NSW DLWC requires details of the likely flood height and behaviour in relation to the proposed works. Measures proposed to mitigate the effect of flooding will need to be detailed. The EIS will also need to detail any likely effect of flood height and behaviour resulting from the proposal on adjacent and surrounding areas.
Response: The heights of water levels, pond walls, roads and buildings in the farm relative to ADH are provided in the Appendix. The 1 in 100 year flood level is 2.8m above ADH. Appendix J5 shows the relative heights of soils and water in the proposed farm.
56. In the section entitled Soil and Landscape (fol 56) the following appears:
NSW Fisheries requires that the soils are suitable for pond construction and prawn farming. All Acid Sulfate Soil (ASS) issues should be addressed, and a complete soil profile of the site should be provided. In relation to this issue, NSW DLWC writes that the Yamba Acid Sulfate Soil Risk Map indicates that the area proposed for the development has a high probability of occurrence of Acid Sulfate materials within 1 metre of the ground surface. The EIS needs to identify the actual depth of the Acid Sulfate material and whether the proposal will disturb this material. If disturbance is proposed, an Acid Sulfate Management Plan needs to be prepared which details how this material will be managed to ensure that there is no detrimental effect to the environment. Also NSW EPA requires results of an acid sulfate soils (ASS) assessment of the site be carried out in accordance with the NSW Acid Sulfate Soils Management Advisory Committee’s (ASSMAC’s) August 1998, Acid Sulfate Soil Manual. If ASS material is to be disturbed on the site an ASS soils and water management plan will need to be provided.
Response: The farm is located on soil that is classified as At2 (Alluvial, 1-2m above water level, levee toe landform) in the Clarence River Acid Sulfate Soils Assessment map. Soil profiles are provided in Appendix J6. Potential acid sulfate soils (PASS) do exist in soil layers beneath the farm, however the development will not disturb them. Agricultural lime will be available on site during pond construction should PASS is disturbed during construction. Lime will be spread over the PASS and then soil will be spread over the area.
57. After the Smith DA and SEE were submitted, Council requested certain additional information from Smith (Exhibit M1, fol 96). It also sought comments from various relevant government departments (fols 97-99), and placed the application on public exhibition. Several of the government agencies consulted required further information, which, in turn, Council sought from Mr Smith (fol 103).
58. NSW Agriculture reported to the former owner of the subject site (fol 138f), warning him to be conscious that all AHD measurements are best estimates only, but indicating that some of the subject site was certainly less than 1m AHD (fol 141). It would appear that that NSW Agriculture document was before the Council.
59. None of the departmental responses suggest that the project is not permissible, but the court cannot reach a concluded view as to whether specific survey material was provided to them. However, the Council told the Department of Fisheries on 14 February 2001 (fol 175):
In regard to point 2, I have had preliminary discussions with the applicant to determine how the AHD Measurements quoted in the SEE were arrived at and it appears that they are accurate, but will be reviewed. I have also asked the same question of DLWC, in addition to whether the ASS risk maps should be used as the determining tool for the purposes of aquaculture in the area as suggested by the SEPP. I will advise you of the outcome of these discussions.The pre-lodgement assessment of the proposal advised the applicant that the proposal was level 2 in regard to Tier 1. Site Evaluation For Ponds. This determination was based on information provided by Acid Sulphate soil Risk Maps (Land & Water Conservation) as recommended by the SEPP. However when the proponent undertook on site surveys, about 20% of the subject land has been reported to be below the 1 metre AHD level (see Appendices J4.1 &J4.2 of the SEE). SEPP 62 requires that the land must be above 1m AHD (minimum requirements), or is prohibited development (my interpretation of SEPP 62). If the proponent avoids placing ponds on the area below 1m AHD by utilising this area for ancillary sheds and parking area etc, is the proposal still a prohibited development? Can the applicant fill a small section of the land now below the 1m AHD level to bring it up to the required level?
60. On 1 February 2001, the DLWC advised the Council, inter alia, (fol 178):
In light of this the AHD should be checked by the applicant and it is expected that this will result in all reading being above 1m AHD and hence being permissible under the Aquaculture guidelines.I would draw Council’s and the applicant’s attention to the fact that the AHD is incorrect. If the AHD is based on Yamba, then the reading will be 90cm below normal AHD. This problem has occurred on other nearby sites. If the lower end of the block was only 0.495 AHD as shown then the lower end of the block would be flooded at high tide and certainly would not have been used for cane growing.
61. Fisheries responded on 23 February 2001, inter alia, (fol 180):
In relation to the second issue that you have raised, Paul Smith is permitted to utilise an area for parking space, ancillary sheds etc that is below the 1m AHD level. In addition he may fill a section of land to build it to the required level.In Paul Smith’s circumstances, the WSPA (Water Surface Production Area) of culture ponds is 4ha. The capacity of the effluent treatment system is 7,500m3 (ie the sum of the volume of the 0.25ha settlement pond and 0.5ha effluent treatment system with an average depth of 1m. Therefore the volume = 0.75ha x 10,000 x 1m with a retention time of 1.88 days). This places the proposal in category 2 of the NSW North Coast Sustainable Aquaculture Strategy.
62. On 2 March 2001, Smith made some alterations to their development application (see fols 186-190). See also Smith’s letter of 6 March 2001 (fol 197), which notes that the shed will be built 2.8m above ADH (sic), i.e. above the 1:100 flood level.
63. On 9 March 2001, Council wrote to DUAP, inter alia, (fol 199):
As you may recall, Council currently has an application before it which is located on land classified 2-4 metres AHD on the Risk Maps, but which the actual survey has established to be less than 1 metre AHD for a substantial portion of the property. Council has advised the applicant that the application will be held in abeyance until such time as this matter has been resolved, due to the threat of legal action by an adjoining owner. The application processing period has now exceeded the deemed refusal limit, and Council would like to be in a position to determine the application as soon as possible.It is also my understanding that it is your belief that Schedule 1, Part 2, Clause 4 of SEPP No.62 would not require amending, though it does appear to be identical to the Criteria on page 55 of the Strategy.
64. Council sought further information from Smith on 2 April 2001 (fol 201).
65. Relevantly, DUAP wrote to Council on 14 May 2001 in the following terms (fol 203):
I refer to an inquiry from Mr Clem Roden regarding the use of the ASS Risk Maps to determine the elevation and hence the permissibility of the proposed Smith Prawn Farm, Palmers Island. For determining the permissibility of a development in relation to elevation in estuarine areas, the SEPP 62 indicates that reference should be made to the ASS Risk Maps and the evaluation indicated in those maps.
Elevation Australian Height Datum (AHD) for estuarine ponds must be 1 and 10 metres AHD as sourced in ASS maps.
For estuarine pond aquaculture, the relevant catchment maps identified as green the land which meet 1m AHD minimum per performance criteria as indicated in the ASS Risk Maps.It was recognised that there could be local variation in topography within individual properties and in some cases, portion of the land which is identified as being an elevation of greater than 1 metre in the ASS Risk Maps may be less than 1 metre. Nonetheless, the SEPP depends on the ASS Risk Map for the information in relation to elevation, and not a survey of the land. Any local variation in elevation should not preclude properties that have been identified as meeting minimum performance criteria in the ASS Risk Map from being considered to be permissible under the provisions of SEPP 62.
The applicant should submit sufficient information to the consent authority so that the consent authority can decide whether the project meets the Minimum Performance Criteria and on the level of assessment based on the level of risk according to the Project Profile Analysis required for the proposal. It is the responsibility of the consent authority to determine if a proposal is permissible and if the proposal is a Class 1, 2 or 3 development.
I hope this information will assist in clarifying the issue.
66. Council officers reported on the application on 11 July 2001 (Exhibit C2). The report included the following comments:
Council Staff have classified the proposed development as Class 2, requiring the submission of a SEE. This classification has been questioned by objectors with the claim that the site fails the Minimum Performance Criteria and so is prohibited development. The issue is dealt within in detail in the S79(c) and public submissions Attachments. The essence of the conflict is as follows:
· The Minimum Performance Criteria requires that the subject property must have a height of between 1m AHD and 10m AHD as sourced in Acid Sulphate Soil (ASS) Risk Map.
· The ASS Risk Map indicates the property is classified as 2-4m AHD.
· Survey details submitted by the applicant indicated that a sizeable portion of the subject property is in fact below 1m AHD.
Finally, the proposal is also an Integrated Development Application under the EP&A Act, requiring the following approvals:Staff sought advice from the Department of Urban Affairs and Planning, which advised that SEPP 62 relies the ASS Risk maps to determine elevation, and as such staff continue to adopt the position that the proposal is permissible.
· Part 3A Rivers and Foreshores Improvement Act 1948
· Environment Protection Licence
· Permit under Section 144 Fisheries Management Act 1994
The proposal has been referred to each of the Integrated Planning Authorities who have provided their general terms of approval which have been included in the draft conditions of consent.
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The proponent has made significant changes to the originally submitted plans in order to accommodate concerns raised by Council Staff and neighbouring property owners. Changes have improved the layout in terms of compliance with the North Coast Sustainable Aquaculture Strategy and will reduce the impacts from the prawn farm on adjoining and nearby residences to acceptable levels given the rural zoning of the land.
Conditions will be attached to ensure that where applicable the proposal is consistent with the North Coast Sustainable Aquaculture Strategy, including amendments to pond wall to comply with recommended batters of 2.5:1 on the inside and 2:1 on the outside.
The options are:OPTIONS:
- Option 1 is recommended on the grounds that DUAP have confirmed in writing their opinion that the proposal is permissible, though Council will need to accept this position. Should Council not accept this position, Options 2 or 3 are recommended, based on Council’s consideration of the merits of the proposal.
67. Council resolved to grant consent subject to conditions, and issued a notice of determination on 11 July 2001 (see Exhibit M1 fols 212-230). The operational date is 11 July 2001. The conditions imposed by Council included those submitted by the consulted authorities.
Consideration
68. Council appears to have assessed the development as meeting the minimum performance criteria, on the basis of its determination that the site met the SEPP 62 criteria for elevation, a determination based, in turn, on the basis of the elevations shown on the ASS maps. However, according to pp 189-190 of the Council’s bundle (Exhibit M1), Council was aware that, in fact, ponds are to be constructed on part of the Smith land below 1m AHD.
69. The applicant contends that the ASS maps are not suitable for identifying AHD for the purposes of establishing whether or not the particular site meets the minimum performance criteria for elevation of site under SEPP 62. The ASS maps were not created for the purpose of identifying AHD for specific sites. Printed on the map is the injunction (Exhibit C3):
This map is to be used as a general guide for regional and local scale land use planning and land management only and not for the assessment of specific sites which can only be assessed by a site specific soil investigation.
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This map is only reliable at the published scale of 1:25000.
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This map should be used in conjunction with the guidelines.
70. Page 14 of the 1998 Second Edition of the Guidelines referred to (also in Exhibit C3) states that elevation data on ASS maps is approximate only due to the extrapolation of elevation data between known elevation points. Reliance on the ASS maps is not mandatory under SEPP 62, which notes that AHD for areas may be sourced in the ASS maps. The Interpretation Act 1987 s 35(2)(c) provides that marginal notes etc are not part of the instrument in which they appear, and cl 4(2) of SEPP 62 expressly says that notes in the policy and the table of contents do not form part of the policy.
71. However, the minimum performance criteria set out in Schedule 1 of SEPP 62 are indeed mandatory. Clauses 8 and 11 and s 76B of the EP&A Act, render development
prohibited if those criteria in Schedule 1 of SEPP 62 are not met, and cl 4 of Schedule 1 requires the proposed activity to take place “ within an area that is above 1m AHD… ”.
72. Clause 10 of SEPP 62 requires a consent authority to take into consideration such of the provisions of the AIDP, formulated under the Fisheries Management Act 1994, as are relevant to the DA.
73. In the end analysis, therefore, the Court has to decide what meaning is to be ascribed to the word “area” as used in SEPP 62 – does it refer to an “area” of the site to be used for aquaculture, or does it refer to a broader “area”, or the district, in which the site so used is to be found?
74. The applicant submits that the word “area” in SEPP 62 should have its “normal” English language meaning, and submits that that meaning is not specifically limited in any way by SEPP 62. The applicant says that that “normal” meaning in this case is “area of land relevant to the DA”. As Ms Winters submitted (T44 L35-41):
… the use of the word, area, is not in any way peculiar or extensive as my friend would have your Honour accept. The use of the word, area, in clause 4 has no particular connotation whatsoever. It’s merely a word to identify a particular part of land surface. An area. And in this particular case an area that is above one metre AHD.
75. Mr Maston, for the Council, relies upon the principles governing the interpretation of planning instruments, as discussed in Vanmeld Pty Ltd v Fairfield City Council [1997] NSWLEC 200 (see also Saraswati v R [1991] ALR 193 per McHugh J at 207-8), and submits that the construction of the word “area” should not confine it to the development site, or even its immediate environs.
76. The word “area”, as appearing in cl 4(1) of Schedule 1, would have no work to do if it simply meant “site”. In the EP&A Act and the Local Government Act 1993, the word “area” means local government area. The dictionary would suggest synonyms such as “region” or “tract of land”.
77. Mr Maston also relies upon the stated aims and objectives of SEPP 62, and extrinsic aids such as the notes in SEPP 62, to assist in the interpretation of the word in its context. (See EP&A Act s 25(3) and Interpretation Act 1987 s 34(1)(a)). Clause 3(b) of SEPP 62 would suggest “area” used in the sense of at least the area of the Clarence River estuary. Clause 3(e) would suggest that “area” means the North Coast region. Clauses 5 and 12 speak of “parts of the State”. Schedule 1 suggests local government areas, or extensive parts of local government areas zoned for rural purposes. Clause 3 of Schedule 1 talks of an area with a maximum width of 1km, cl 6 of extensive areas of flood plain subject to flooding; cl 7 of areas reserved or dedicated under National Parks legislation. In all of these applications the word “area” extends beyond “site” or “part of site”.
Conclusion
78. The court has come to the firm conclusion that Mr Maston’s submissions on the “ordinary” meaning of the word “area” in the context of SEPP 62 are to be preferred. The appropriate question for the Council to ask itself was whether the development site is located in an “area”, as in “district” or “region”, which could be categorised as generally having elevations ranging between 1m and 10m AHD.
79. Mr Maston, therefore, submits that, in order for the DC to be attacked in these proceedings by way of judicial review, the applicant must show that the relevant facts could not reasonably have led to more than one conclusion. Londish v Knox Grammar School (1997) 97 LGERA 1. Was it reasonably open to the Council to determine that the Smith site was within an area that is above 1m and below 10m AHD? This is a question of fact.
80. It is clear that, on the material before it, it was indeed open to Council to find both that the majority of spot levels on the subject site were above 1m AHD, and also that the general area in which the site is located has a prevailing elevation of approximately 1m AHD or more.
81. As Mr Maston submitted (T41 L32-35):
The Council identified the question precisely, made inquiries about it, looked at the material that it had available, saw that it had maps which gave a general answer to an area elevation and applied them.
82. The Council was entitled to make the judgment that it did, and this court should not review such a decision. See Londish (at 8).
Orders
83. The court concludes that the subject development is permissible, and that the Council was entitled to so determine.
84. This matter is adjourned for callover by the Registrar on Friday 1 February 2002, with a view to its further disposition, and I direct the applicant and the First Respondent to notify the Second and Third Respondents of that listing.
85. The exhibits may be returned.
86. All questions of costs in these proceedings are reserved.
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