Eastlakes Golf Club v Botany Bay City Council

Land and Environment Court

of New South Wales

CITATION: Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343

PARTIES:
APPLICANT
Eastlakes Golf Club
RESPONDENT
Botany Bay City Council

FILE NUMBER(S): 11019 of 2005

CORAM: Moore C

KEY ISSUES: Development Application :-
Threatened species
Visual impact

LEGISLATION CITED: Botany Local Environmental Plan 1995
Development Control Plan No. 40 - Environmental Protection of Wetlands
Threatened Species Conservation Act, 1995
State Environmental Planning Policy No. 64 – Advertising and Signage
State Environmental Planning Policy No. I – Development Standards

CASES CITED: Botany Bay City Council v Remath Investments No.6 Pty Limited (2000) 50 NSWLR 312;
Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186;
Smyth v Nambucca Shire Council & Anor (1999) 105 LGERA 65;
Deniliquin Municipal Council v Murray Shire Council NSWLEC (unreported – 22 July 1987);
Coffs Harbour Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Dem Gillespies v Warringah Council 124 LGERA 147; [2002] NSWLEC 224;
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195; NSWCA 289;
Manzie v Willoughby City Council 96 LEC 26;
Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

DATES OF HEARING: 15, 16, 17 and 25 May 2006

DATE OF JUDGMENT:
08/23/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Galasso, barrister
INSTRUCTED BY
Cutler Hughes & Harris
RESPONDENT
Mr T Hale SC
INSTRUCTED BY
Houston Dearns O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

23 August 2006

11019 of 2005 Eastlakes Golf Club Limited v Botany Bay City Council

The consequence of the Court’s decision in this appeal will the granting of development consent subject to detailed conditions which remain to be settled. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal on 6 April 2005 by Botany Bay City Council (the council) of Development Application 05/123 (the development application) by the Eastlakes Golf Club Limited (the golf club) for the construction of a pedestrian and service vehicle bridge. The proposal is integrated development.

2 The bridge would span Wentworth Avenue, Pagewood (the road) – the road being a major, four lane (with median strip) thoroughfare running east-west. The road bisects the Eastlakes Golf Course (the golf course). The bridge is proposed to link the northern and southern portions of the golf course. The road carries ~ 1,500,000 vehicles movements per annum (evidence of Mr Paterson, General Manager of the golf club) or ~ 40,000 vehicles movements per day (evidence of Mr Blyth, the golf club’s consultant town planner).

3 The golf club trades as a public golf course – that is, it has members who have certain rights but the golf course is also open to members of the general public who may, on a casual basis, play a round of golf by payment of a single fee to the golf club for this purpose. On the evidence before me, ~ 50,000 rounds of golf per annum are played on the course – thus representing ~ 100,000 golfer crossings of the road (whether on foot or in a golf buggy) per annum – as each player needs to cross the road twice to play a complete round.

4 Golfers and staff operating course service vehicles cross between the northern and southern portions of the golf course, in both directions, at two informal, unmarked, unsignposted and uncontrolled crossing points. The first, to the east of the bridge site, is used by pedestrian and golf cart conveyed golfers and staff operating course service vehicles whilst the second, some distance to the west of the bridge site, is only used by pedestrian and golf cart conveyed golfers.

5 The total number of crossings (including service vehicles) was said by Mr Paterson to be ~ 135,000 per annum.

6 I do not understand the council contests, as to the broad position outlined above, the number of vehicle movements along the road or the total number of crossings by golfers and staff.

7 The golf club proposes the bridge because of the safety concerns that the club committee and management have about the inherent conflict between golfers and course service vehicles travelling along north/south routes and the high volume of vehicle traffic utilising the road during daylight hours.

8 Pedestrian and golf cart conveyed golfers will use the bridge. In addition, course maintenance vehicles such as tractors and mowers will also utilise the bridge.

9 Although the bridge will primarily be for the use of patrons and staff of the golf course and will only be available for use by the general public during daylight hours, some public use will be by casual joggers, persons exercising their dog and the like. Security gates are proposed to each end of the bridge and these would be locked outside of golf course hours. At night, these security gates will prevent access to the bridge.

10 The golf course comprises the following allotments:

Part Lot 1 in DP 780392

Lot 5 in DP 780391

11 The golf course land is owned by Sydney Water Corporation and leased to the golf club. Sydney Water Corporation has given owner’s consent to the application. The golf course comprises part of the Botany Wetlands (the wetlands), which are identified as a State significant heritage item on the State Heritage Register.

12 Despite the council’s Statement of Basic Facts stating that Wentworth Avenue (and thus its airspace) is owned and managed by the NSW Roads and Traffic Authority (the RTA), the history to and current status of the ownership (and control by virtue of s 7 of the Roads Act 1993 (the Roads Act)) of the road is unclear.

13 However, Mr Galasso, barrister for the applicant, indicated toward the end of the hearings, that the applicant was content, on a without admissions and without prejudice basis, to have the council assumed, for the purposes only of this appeal, to be the consent authority for the road land pursuant to the Roads Act. As a consequence, it is not necessary to express any concluded view as to the present ownership of the road.

14 Although the issue of ownership of the road disappeared, the views of the RTA remained relevant on the question of what style of crossing (to link the northern and southern portions of the golf course) was acceptable from a road design and traffic management perspective. The RTA has not raised any objection to the proposed bridge.

15 The bridge would be 35 m long, 3.3 m wide and have a height of 5.5 m above the carriageway of the road. The bridge would link, at its southern end, to the northern slope of a local high point relative to the surrounding topography – this high point has a trig station located on its summit.

16 The bridge is to be constructed from single reinforced and pre-stressed concrete span with steel balustrades and steel support structures to accommodate advertising signage. Services are to be incorporated in the lower portion of the bridge below the deck structure.

17 The bridge will also require safety screens which prevent objects being thrown from the bridge at vehicles passing below. These screens would need to comply with RTA Technical Direction TD 2002/RS02 (RTA letter of 29 April 2005).

18 Works are proposed to occur both within the road reserve and on both the northern and southern portions of the golf course.

19 A ramp is proposed to connect the deck of the bridge to the northern section of the golf course. This ramp would extend some distance to the north-east of the northern end of the deck of the bridge. Part of the ramp would be formed on the top of a substantial earth mound and part would be an elevated structure.

20 In addition, a Y-shaped pathway is proposed to connect the deck of the bridge to the southern section of the golf course. These pathways will each disturb bushland on the northern slopes of the high point.

21 Fences are to be erected along each side of the road to prevent any continued at grade crossing of the road. No gates are to be provided as any vehicles which need to access the southern portion of the golf course and which are too heavy to use the bridge have an alternative (somewhat longer) route via public roads to do so.

22 A critical element of the application is the proposal for erection of two illuminated signage panels to the sides of the bridge – with one panel facing east and one facing west. These signs are critical as their erection and the advertising revenue to flow from their use is to provide the essential financial underpinning for the bridge’s construction.

23 The company which is proposed to have a long-term lease on the signage rights, Outdoor Plus Pty Limited (the advertising company), is to fund construction of the bridge as part of its arrangements with the club. Although details of the proposed arrangements between the golf club and the advertising company were provided to me, it is not necessary to explore the details in this decision.

24 The signage panels are proposed each to be 12.6 m wide and 3.4 m high – giving a display area of 42.84 sq m for each sign. Mr Tyquin, the Managing Director of the advertising company, gave evidence concerning these proposed signs and how they rendered the proposal viable for his company. The dimensions of the proposed signs and their resultant display area renders them, according to Mr Tyquin, “super sized signs” which provide a particular rate of return which makes the proposal viable. It was his evidence that smaller signs would not generate sufficient return to do so.

25 The signage is proposed to be positioned ~ 5.5 m above the road and will extend ~ 8.9 m above the road and 1.5 m above the bridge deck level. The signage panels are to be illuminated by directional metal halide lamps integrated into the maintenance platform for each panel.

26 The immediate visual context of the bridge site is characterised by the fairways and tees of the golf course (together with the bushland of the local high point), the wetlands and the dual carriageways of the road. The nearest built developments to the bridge site are residential dwellings on Bay Street, Wentworth Avenue, Dailey Avenue and Lang Avenue in Pagewood.

27 I have had the assistance of three Court-appointed expert witnesses in these proceedings – Mr Ingham on town planning issues; Ms Plate on heritage matters relating to the Botany Wetlands and the remnants of Eastern Suburbs Banksia Scrub (ESBS); and Mr Introna on the impacts on ESBS and whether a species impact statement was required.

28 On the first morning of the hearing, I had the opportunity to inspect the site of the proposed bridge in company with the legal representatives and advisors to the parties and with the Court-appointed experts.

The issues

29 In summary, the issues requiring to be determined are:

Is a species impact statement required as a result of possible impacts on the remnants of ESBS?
Do I need to consider what the council says are alternative options to a bridge?
Is a bridge acceptable at the proposed location?
Are the proposed bridge and its pathways acceptable at the proposed location?
For the sign heights above the bridge deck, should an objection be sustained pursuant to State Environmental Planning Policy 1 (SEPP 1) to compliance with a development standard contained in State Environmental Planning Policy 64 (SEPP 64)? and
If the SEPP 1 objection is sustained, are the proposed advertising signage structures acceptable on a merit assessment?

The relevant planning frameworks for consideration of the bridge and the signage

30 The proposal for the bridge falls to be considered against the council’s planning requirements. However, the signage falls to be considered pursuant to the provisions of SEPP 64 (by virtue of the provisions of cls 5 and 7 of SEPP 64). Only if there are matters raised by the council’s planning instruments that are in addition to and not inconsistent with the requirements of SEPP 64 are such matters brought into play.

The council’s planning context

31 The bridge will be located within two zones the under the Botany Local Environmental Plan 1995 (the LEP). The first zone applies to the airspace over the road – which zone is Unzoned and the second zone applies to the golf course – which zone is 6(c) Open Space - Recreation Restricted.

32 Under the zoning table in the LEP, in the 6(c) Open Space - Recreation Restricted zone permissible development is:

Development for the purpose of: environmental educational projects; environmental restoration works (in accordance with an environmental management plan adopted by Sydney Water Corporation); utility undertakings and exempt development (any of which may be carried out without development consent); and

33 Any other development is prohibited in the zone.

34 The objectives of the LEP are contained in cl 5. The relevant objectives are contained in Cl 5(6):

(6) The objectives of this plan in relation to the environment, the landscape and the heritage are:

(a) to restrict and control development which could adversely affect the ecosystem, habitat, landscape or scenic quality of environmentally sensitive lands, such as the Botany Wetlands,
(b) ………,
(c) ………,
(d) ………,
(e) ………,
(f) ………,,
(g) to integrate heritage conservation into the planning and development control processes,
(h) ………, and
(i) to ensure that any development does not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings, and
(j) to identify and conserve wetlands and their associated riparian vegetation, threatened species and endangered ecological communities within the City of Botany Bay, and
(k) to promote the restoration of degraded habitats, the protection of aquatic, riparian and terrestrial habitats and the retention of natural hydrological and geomorphological regimes.

35 The LEP sets primary and secondary objectives for the 6 (c) zone. These are:

The primary objective is to permit open space and recreational land uses while protecting nearby wetlands and their associated riparian vegetation, threatened species and endangered ecological communities.

The secondary objectives are:

(a) to ensure that open space is managed in accordance with ecologically sustainable land management practices, and
(b) to enable development that will not destroy, damage or compromise the ecological, scientific or scenic values of wetlands and their associated riparian vegetation, threatened species and endangered ecological communities, and
(c) to conserve and enhance the wetlands and associated riparian zones, and
(d) to provide for an aesthetic and recreational landscape, and
(e) to ensure development will not have a detrimental impact on the Botany Sands Aquifer and surface water quality.

36 The LEP requires, by cl 18AA, that the Council must not grant consent to the carrying out of development on land within Zone No 6 (c) unless the council has had regard to an environmental analysis of the proposed development. I am satisfied that the documents, evidence and submissions in these proceedings constitute an adequate environmental analysis of the proposed development.

37 With respect to unzoned land, the LEP relevantly provides, in cl 19:

(2) Development for any purpose of any land to which this clause applies may be carried out with the consent of the Council provided the Council is of the opinion that the development:

(a) is compatible with the nature of development permissible on neighbouring land and those development standards applicable to development on neighbourhood land, and

(b) is consistent with the objectives of this plan and the objectives of the zoning applying to neighbouring land.

38 Draft Amendment No 28 to the LEP relevantly proposes to insert, into the general objectives of the LEP, the following:

(8A) The objectives of this plan in relation to outdoor advertising are:

39 With respect to general advertising, Draft Amendment No 28 to the LEP relevantly provides:

The Council may consent to general advertising on land within Zone No 3 (a), 3 (b), 4 (c1), 4 (c2) or 5 (a), but only if it is of the opinion that the general advertising:

(a) will enhance and improve the landscaping and scenic quality of the locality, and
(b) will not add or contribute to the signage clutter in the locality, and
(c) will not have an adverse effect on traffic safety, and
(d) will not have an adverse effect on the amenity of the locality within which it is located (taking into account, for example, its visual impact, size and illumination), and
(e) will, if attached to a building, form an integral but subsidiary part of the building, both in structure and appearance.

40 Development Control Plan No. 40 - Environmental Protection of Wetlands (DCP 40) also applies to the wetlands areas and to the golf course land in their vicinity. Part 1.4 of DCP 40 sets out the plan’s objectives as follows:

O1 To implement the objectives of the Botany Local Environmental Plan 1995.
O2 To protect wetlands from inappropriate development by regulating developments that have the potential to fragment, pollute, disturb or diminish the values of wetlands and their associated riparian vegetation.
O3 To provide clear information and advice to potential developers, consent authorities, landowners and residents regarding the requirements for information to be submitted with development proposals affected by this DCP.
O4 To protect Threatened Species and Endangered Ecological Communities.
O5 To protect, restore and maintain ecological processes, natural systems and biodiversity within wetlands.
O6 To encourage best practice land use planning and environmental design measures that enhance the sustainability of wetland functions and values.
O7 To ensure that any significant effect on any threatened species or endangered ecological community is taken into account in accordance with Section 5A of the Environmental Planning and Assessment Act 1979 and that the protection of such species and communities is considered.
O8 To assist Council in implementing the Threatened Species Conservation Act, 1995.

41 DCP 40 deals with social and cultural values in Part 3.4. The relevant objective is:

42 The relevant controls are:

Is a species impact statement required?

43 ESBS is listed as an endangered Ecological Community in Part 3, Schedule 1, of the Threatened Species Conservation Act, 1995 (the TSC Act).

44 Data from the Department of Environment and Conservation identifies ~ 146 ha of ESBS in the region. DCP 40 also records, at 5.1, that:

Eastern Suburbs Banksia Scrub (ESBS) is a sclerophyllous heath /scrub vegetation that occurs as a number of small, isolated remnants. ESBS once occupied around 5,300 hectares of land between Port Jackson and Botany Bay. Today, less than 3% of the of the original distribution of the ESBS remains as a number of small, isolated remnants ranging in size from 0.06 to 8.5 hectares and totalling only 138 hectares.

45 The ESBS which occurs in the vicinity of the bridge site is ~ 0.3 ha – this representing ~ 0.2% of this regional occurrence.

46 Mr Hale SC, barrister for the council, submits that a species impact statement is required by virtue of the existence of the ESBS and the operation of s 78A(8)(b) of the Act. None has been provided and Mr Galasso submits none is required.

47 The development application was accompanied by a Statement of Environmental Effects and, inter alia, a Flora and Fauna Assessment prepared by Total Earth Care (the Total Earth Care report). The Total Earth Care report addressed the provisions of s 5A of the Act and carried out an 8 part test with respect to the impact on the ESBS of the bridge and the associated pathways. The Total Earth Care report identifies and recommends the inclusion of a number of "ameliorative actions”. These amelioration measures form part of the development application.

48 Mr Introna was the court-appointed expert on this issue. He gave both written and oral evidence – including informally during the site view. He commented, at p 19 of his preliminary report:

However, with small project [sic] and clear impacts such as this one, it is considered that a relatively detailed analysis and evaluation can be made at the '8 part test' stage - enough to clearly determine [sic] potential impacts and develop appropriate amelioration measures.

49 Mr Introna expressed the opinion, at p 20 of his preliminary report:

I am of the opinion that without the knowledge of the location of the path through the ESBS then an SIS would be required so that a more detailed evaluation could be carried out (which would likely include the path location). Such an evaluation would have identified the potential direct and indirect impacts as well as appropriate amelioration measures in more detail.

Before reaching a final conclusion about the results of the '8 part test', consideration must be given to the proposed amelioration measures. Often, despite the potential local effects on a threatened species, population or community, amelioration measures that include regeneration or offsetting may result in a net overall benefit or gain for a threatened species, population or community.

50 I interpolate here that the final locations of the paths on the southern end of the bridge were set during the hearing so that this defect identified by Mr Introna was cured. Mr Introna was satisfied with proposed final locations of those paths.

51 Mr Introna then set out the Total Earth Care report’s proposed "ameliorative actions”. These are:

Maintain surrounding scrub vegetation.
Revegetate disturbed areas.
Enforce weed control measures during construction.
Initiate bush regeneration program throughout retained bushland following construction.
Install silt fences, geotextile wind breaks and brush-matting along contour below path and revegetate disturbed ground post-construction.
Install chain mesh exclusion fencing along boundary of development areas; rehabilitate following removal of fence.
Restrict path construction to minimum width possible (2m).
Install exclusion fencing above and below path.
Revegetation margins of path with locally indigenous FSBS species.
Manage ESBS and other affected vegetation according to Golf Course Management Plan (Kate Low and Associates 2005) (includes fire, rabbit, weed and vegetation management actions).
Prepare a landscape plan to show areas proposed for planting, erosion control and soil stabilisation.
Use felled shrubs or trees as wind break, brush matting or seed source and in rehabilitation work.
Retain native trees as far as possible.
Implement dedicated weed control programme within area to be affected.
Located material stockpile and vehicle parking areas on already cleared and disturbed land at least 5m from vegetation to be retained.

52 Mr Introna commented on these measures as follows:

These measures help ameliorate the potential adverse effects on ESBS by providing outcomes that would result in the control of threatening process such as weed invasion and erosion and accidental clearance of ESBS. They need to be taken into account when determining whether or not there is likely to be a significant effect on ESBS.

53 However, he concluded, with respect to these:

To result in a net benefit and positive outcome for ESBS, and thus avoid significant effects on ESBS, amelioration measures would need to include either offset or regeneration measures in addition to those mentioned above. This would result in a greater area of ESBS being maintained and conserved in better ecological than at present.

54 As a result, he recommended a range of additional ameliorative measures:

Verify the entire boundary of the remnant of ESBS mapped by DEC (2004) on the southern side of Wentworth Avenue, including assessment of resilience based on the presence of intact soil profiles and indicator species.
Undertake bush regeneration, weed control and management of this remnant so that it is viable in the long term.
Keep the existing alignment of the path on the edge and down-slope of the ESBS remnant to avoid further isolation or increase in edge effects.
Locating of material stockpile and vehicle parking areas down-slope from ESBS.
Include all amelioration measures in conditions of consent.
Stabilise the side of the dune on the southern side of Wentworth Avenue to remove threat to ESBS of soil erosion.

55 During the hearing, Mr Galasso sought (and was granted) leave to amend the development application to incorporate the additional ameliorative measures proposed by Mr Introna.

56 The test as to whether or not a species impact statement is required is derived from s 78A(8)(b) of the Act. Relevantly, this provides that if the application is in respect of development which……. is likely to significantly affect threatened ……… ecological communities — a species impact statement prepared in accordance with Division 2 of Part 6 of the TSC Act must be provided.

57 It is clear that, if a species impact statement is, in fact, required and none is provided, the result is that there is no development application capable of being approved (see Botany Bay City Council v Remath Investments No.6 Pty Limited (2000) 50 NSWLR 312).

58 Mr Hale, in his post hearing written submissions, relies on the decision of Stein J in Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 to support the proposition that conditions cannot be used to obviate the need fro a species impact statement. Mr Hale drew my attention to a passage, at p 192, where His Honour said:

In my opinion a determining authority cannot determine the question of whether a proposed activity is likely to significantly affect the environment by reference to the imposition of certain conditions which may have the effect of mitigating the environmental impact. This is particularly so where such conditions have the effect of altering or changing the application made by the proponent. To do so could lead to absurd situations which will defeat the objectives of the legislation.

59 It is clear from Stein J’s approach (and that dealt with in several other cases referred to in Mr Hale’s written submissions) that it is not permissible to cure the lack of a required species impact statement by the relevant consent authority itself unilaterally deciding to impose conditions which would sufficiently ameliorate the impacts to remove the likelihood of significant affectation and thus avoid the requirements of s 78A(8)(b) of the Act.

60 In Smyth v Nambucca Shire Council & Anor (1999) 105 LGERA 65, Lloyd J said, at p 69:

development

61 His Honour also said, at p 70:

It seems that the Commissioner was led into error by, at least partly, the omission from s 5A of any express reference to any proposal to ameliorate the impact of a proposed development. It seems to me that the answer to this is that there is no need for there to be any express reference to ameliorative measures in that section. The terms of the section make it plain that the matters for consideration necessarily include the impact of a proposed development and any associated ameliorative measures.

62 These decisions are not inconsistent as, in the latter case, it is clear that the ameliorative measures formed part of the development application whilst, in the former, they would have required imposition by the consent authority.

63 In this instance, the applicant has adopted the ameliorative measures proposed by Total Earth Care and those proposed by Mr Introna. These now form part of the development application falling to be determined.

64 I am, therefore satisfied, relying on the approach in Smythe, that, prima facie, no species impact statement is required.

65 However, Mr Hale also put that:

EP&A Act.

66 It is clear from a reading of the ameliorative measures proposed by Total Earth Care and those proposed by Mr Introna that a number of them are, in fact, couched in general terms and lack specificity.

67 However, I am satisfied that they are not incapable of being couched in more particular and specific terms which would render them able to be implemented to give the net benefit and positive outcome for ESBS postulated by Mr Introna. Indeed, it is reasonable to assume that Mr Introna so believed or he would not have reached the conclusions he had expressed.

68 I am therefore satisfied that, as this lack of specificity is a curable impediment to approval, consistent with the recent approach taken by the Court in Class 1 appeals, the appropriate course to follow will be to have Mr Introna produce a detailed plan of management to implement all the ameliorative measures to the satisfaction of the Court. Only if the applicant is unwilling or unable to have Mr Introna do this will the application then fail the s 78A(8)(b) test as a species impact statement would then become required.

Alternatives to a bridge

69 The golf club does not resile from the fact that the proposed bridge is the only viable proposition for a new, safer road crossing, as far as the golf club is concerned, because of the inability of the golf club to finance any possible alternative. The commercial proposition for advertising on the proposed bridge structure is what makes the bridge financially viable for the golf club.

70 The advertising company’s operation of the advertising signage for a sufficient period of time to enable the recovery of costs of the bridge structure is what makes it financially viable for the advertising company to construct the bridge.

71 The council took the position that there were other alternatives available which were acceptable and which would reduce or eliminate the risks of the crossing of the road by users of the golf course. These alternatives are, in the council’s opinion:

A tunnel under the road at a low point a short distance to the east of the bridge site; or
A wider median strip in the centre of the road incorporating pedestrian refuges at relevant points; or
A demand actuated signalised pedestrian crossing (if necessary incorporating some notional road on the golf course to overcome the statutory prohibition on wheeled vehicles [golf carts and service vehicles] using signalised pedestrian crossings).

72 The council submitted any that I should consider these alternatives and that I am under an obligation to do so. Mr Hale summarized the council’s position thus:

18. The applicant submits that it is in the public interest that a safe crossing should be provided for golfers playing at Eastlakes Golf Course.
19. If the bridge is sought to be justified on this basis, then the availability of other alternatives to serve the public interest should be considered. Since the development application has been prepared by Outdoor Plus Pty Limited, other alternatives have not been properly considered.

73 Mr Beloff, the RTA’s Traffic Management Manager, gave evidence that other types at grade crossings of the road (traffic signals or an enlarged median strip) were unacceptable from a road and traffic management perspective. I am satisfied, on the basis of his evidence, that there is no realistic possibility of a safe at grade crossing being implemented. It was also his evidence that the RTA had no in principle objection to a tunnel.

74 In this regard, Mr Ingham postulated that an increase in paid public or member rounds of golf might finance a safe crossing other than a bridge. He said:

It is my understanding from the General Manager of the Eastlake Golf Club that the club would anticipate a significant growth in golf rounds per annum if a safe crossing of Wentworth Avenue existed. In my opinion further consideration needs to be given to the potential increase in patronage of the golf course and the cost of undertaking a tunnel option to determine the financial implications of such a proposal.

75 I consider that the financial element of this opinion is speculative. In any event, it was not supported by any financial evidence on behalf of the golf club. Indeed, Mr Ingham’s speculation was entirely inconsistent with the evidence in fact given of the golf club’s incapacity to finance a tunnel. The council did not lead any evidence which contradicted that given on behalf of the golf club on its financial position.

76 Mr Hale relied on the decision of Cripps J in Deniliquin Municipal Council v Murray Shire Council NSWLEC (unreported – 22 July 1987) in support of the general proposition that I was obliged to consider alternative options as part of determining the acceptability of the present proposal.

77 The position of the applicant is that the lack of practical financial viability of a tunnel [as opposed to the engineering practicability of such a tunnel (about which a variety of conflicting technical evidence was provided – this evidence being both supportive and critical of such a proposal)], because of the financial position of the club, meant that a tunnel was not, in fact, an alternative. It was also put by Mr Galasso that, correctly understanding the circumstances dealt with in Deniliquin, even if a tunnel were an alternative, I was not obliged to consider it.

78 I am satisfied that, for something to be an alternative, in the context used in Deniliquin, there must be some realistic possibility of that proposed as an alternative being brought to fruition. The absurdity of taking a contrary position is illustrated, in an extreme and fanciful analogy, by considering the possibility that Sydney’s water supply could be augmented by piping water from Lake Argyle in the Kimberley. It might be technically possible to do so but is self evidently financially unviable and it could not be financed from any realistic source.

79 In this case, I am satisfied that there is no realistic financial possibility for a tunnel. I have reached this conclusion as the uncontradicted evidence about the golf club’s financial position (which I accept establishes that the golf club could not realistically finance a tunnel from any existing or possibly likely future source of revenue) as well as there being no evidence whatsoever that the council, the RTA or anyone else is likely to finance (in whole or substantial part) such a tunnel, renders a tunnel not a true or legitimate “alternative” to the proposed bridge.

80 Therefore, I have further concluded that I do not need to consider the technical defects (if there be such defects) of a tunnel nor do I need to consider whether or not I am obliged to consider viable alternatives as a consequence of the decision of Cripps J in Deniliquin as there are, in fact, no such viable alternatives.

Is the bridge acceptable?

81 Although this development application deals with a specific proposed structure, given my conclusion discussed below that there is a legitimate public interest in elimination of the risks of collisions on this stretch of the road and the step I propose to take, in that regard, as a consequence of my sequence of conclusions, I have decided that it would be appropriate to address this issue in the abstract as well as in the particular.

82 Virtually the entirety of any bridge structure will be located within the unzoned area. Although some small parts of it and all its feeder pathways will be located in the golf course’s land, so much of the structure and its visual presence is located in the unzoned land that I am satisfied that, if a bridge (not necessarily the presently proposed structure – that is a separate and subsequent question to be addressed) is acceptable in the unzoned land, the consequence of such a determination would be that, in principle, the subservient structures would be, because of their minor and ancillary nature, acceptable in the 6(c) zone.

83 The opposition to the bridge from Mr Ingham and Ms Plate arises from their assessments of the negative aesthetic and visual impacts of the proposed structure in the landscape containing the wetlands. Although separate questions arise to be considered concerning such an impact of the bridge and of the signage, the experts effectively bundled their opinions together on these matters.

84 For a merit assessment of the proposed bridge and its access elements, three separate areas fall to be considered. These are:

The main structure spanning the road;

The southern tracks; and

The single northern approach pathway.

85 In this regard, there was no structural objection to the main structure. Although there was considerable evidence about the merit of the ancillary structures, that evidence was not in opposition to their existence (but they were subject to a deal of substantial scrutiny as to their detailed merits). The detailed merits of the southern tracks concerning impacts on ESBS have been discussed in the consideration above of the need for a species impact statement and do not need to be canvassed further. However, there were other possible impacts of the construction of the southern tracks which need to be considered.

86 Ms Plate described the general setting in the following terms:

"………..the Eastlake Golf Course and The Lakes Golf Course adjoining to the northwest are made up of wide, open, grassy spaces dotted with individually planted trees and rows of planted pine trees and feature major water bodies of Botany Wetlands. This relatively natural setting can be appreciated by users of the golf course and glimpsed by occupants of vehicles on Wentworth Avenue through the roadside plantings of locally indigenous species growing within the verges."

87 At the outset of consideration of the issues associated with the bridge and its access structures, I also note the general comment made by Ms Plate at the commencement of the summary of conclusions in her revised statement of evidence. This was:

The proposal would facilitate use and appreciation of the Botany wetlands by users of the golf course.

88 As earlier noted, with respect to unzoned land, the LEP relevantly provides, in cl 19:

(2) Development for any purpose of any land to which this clause applies may be carried out with the consent of the Council provided the Council is of the opinion that the development:

(a) is compatible with the nature of development permissible on neighbouring land and those development standards applicable to development on neighbourhood land, and

(b) is consistent with the objectives of this plan and the objectives of the zoning applying to neighbouring land.

89 I am satisfied that, in the present factual context, compatible with [as used in cl 19(2)(a) of the LEP] is more expansive than and thus not the same as identical as or consistent with (see Clarke JA in Coffs Harbour Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 192 and Bignold J in Dem Gillespies v Warringah Council 124 LGERA 147; [2002] NSWLEC 224 at para 74).

90 ……….“the nature of development permissible on neighbouring land and those development standards applicable to development on neighbourhood land” self evidently includes the golf course. In this instance, I am satisfied that the concept of compatible with the permitted and actual use of the land at each end of the bridge site as part of the golf course encompasses the concept of supporting or providing assistance with the operation of the golf course.

91 I have no doubt that, in the factual matrix here present, that a bridge falls squarely within concept of supporting or providing assistance with the operation of the golf course and therefore satisfies the first element of cl 19(2)(a) of the LEP.

92 There is nothing associated with the elements of the proposed bridge within the unzoned land that would appear to be contrary to those development standards applicable to development on neighbourhood land – “development standards” being a concept generally associated with some form of numerical control requiring to be satisfied. I have no submissions or evidence that any such standard from the LEP or any other relevant planning instrument, Australian Standard or other applicable code or policy is breached by the proposed bridge structure.

93 Indeed, the criticism of the proposed design is that, as a result of the type of structure selected, its very solidity is unacceptable. This is not a criticism, as I understand it, of breach of any development standard for a bridge but applies to the matters required to be addressed pursuant to cl 19(2)(b) of the LEP.

94 In this context, I also have no submissions or evidence on what distinction (if any) should be drawn between the use of the words neighbouring land and neighbourhood land in cl 19(2)(a) of the LEP. As a consequence, although the latter might be of wider compass than the former, I do not think anything turns on this.

95 I am thus satisfied that nothing arising out of the second element of cl 19(2)(a) of the LEP stands against the possibility of some bridge at the proposed site.

96 I therefore turn to address the provisions of cl 19(2)(b) of the LEP. By this provision, the LEP requires me to consider whether the bridge at the proposed site is consistent with the objectives of this plan and the objectives of the zoning applying to neighbouring land.

97 At para 74 in Gillespies, after considering the scope of the word compatible, Bignold J continued:

compatible

Macquarie Dictionary

consistent

cl 12(3)(b)

98 I therefore must consider all of the relevant general and specific zone objectives of the LEP.

99 First, I note that cl 5(6)(g) seeks to integrate heritage conservation into the planning and development control processes. The process undertaken in these proceedings satisfies this provision.

100 Where specific concerns are raised, the matters can be grouped into two classes – those calling up landscape impacts and those calling up physical impacts. Some provisions call up both. For convenience, I have therefore considered these provisions out of the order in which they appear in the LEP.

101 Cl 5(6)(k) seeks to promote the restoration of degraded habitats, the protection of aquatic, riparian and terrestrial habitats and the retention of natural hydrological and geomorphological regimes. Cl 5(6)(j) seeks to identify and conserve wetlands and their associated riparian vegetation, threatened species and endangered ecological communities within the City of Botany Bay. To the limited extent that these objectives are called into play, I am satisfied that, as discussed earlier, implementation of the ameliorative measures proposed will provide a positive benefit for the remnant ESBS communities. These provisions are not otherwise infringed.

102 To the extent that physical impacts are called up by cl 5(6)(a) or (i), these provisions are not infringed.

103 The primary objective of the 6(c) zone which is to permit open space and recreational land uses while protecting nearby wetlands and their associated riparian vegetation, threatened species and endangered ecological communities. In physical impact terms, this is not breached. I consider that any visual impacts are called up by other more specific objectives and are dealt with there.

104 The first of the secondary objectives of the 6(c) zone is to ensure that open space is managed in accordance with ecologically sustainable land management practices. There is no evidence upon which I could conclude that this is infringed.

105 To the extent they deal with physical impacts, the second and third of the secondary objectives (set out in full below) of the 6(c) zone are not infringed.

106 The fifth and final of the secondary objectives of the 6(c) zone is to ensure development will not have a detrimental impact on the Botany Sands Aquifer and surface water quality. This provision is not infringed.

107 Cl 5(6)(a) seeks to restrict and control development which could adversely affect the ecosystem, habitat, landscape or scenic quality of environmentally sensitive lands, such as the Botany Wetlands

108 Cl 5(6)(i) seeks to ensure that any development does not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings.

109 The second of the secondary objectives of the 6(c) zone is to enable development that will not destroy, damage or compromise the ecological, scientific or scenic values of wetlands and their associated riparian vegetation, threatened species and endangered ecological communities

110 The third of the secondary objectives of the 6(c) zone is to conserve and enhance the wetlands and associated riparian zones.

111 The fourth of the secondary objectives of the 6(c) zone is to provide for an aesthetic and recreational landscape.

112 These five provisions expressly or by implication call up the matters of concern to Mr Ingham and Ms Plate arising from the bridge structure.

113 Ms Plate provided evidence of her assessment of the heritage impacts of the bridge on both the ESBS and the Botany wetlands. She concluded, with respect to the ESBS:

The bridge, ramps and embankment would have impacts on the ESBS that could, with minor relocation of part of Track A and appropriate construction and management, be acceptably minimised.

The proposed pathways on the southern side of Wentworth Avenue would have impacts on the ESBS that could with appropriate construction and management be acceptably minimised.

114 The ESBS possible impacts upon which she comments have been dealt with earlier and resolved.

115 She also, however, made a number of criticisms arising from her perception of the impact of the proposal on the wetlands. To the extant that she also made other comment relevant to my consideration of the proposed advertising signage, those will be dealt with when I consider that issue.

116 I turn first to the issues to be considered relating to the degree of cut and fill necessary for some sections of the longest element of the Y-shaped paths – that leading to the west.

117 Ms Plate indicated that her concerns about the southern pathways could be addressed when she concluded:

The proposed pathways on the southern side of Wentworth Avenue would have negligible adverse impacts on the open space qualities of the Botany Wetlands provided appropriate techniques for bank stabilisation and path construction were used.

118 Mr Ingham and Mr Marsh, the council’s Manager – Engineering & Technical Services, gave evidence, inter alia, raising concerns about for bank stabilisation and path construction for the western element of the southern pathways.

119 Mr Jenkins gave engineering evidence on behalf of the golf club. A variety of section drawings to demonstrate cut and fill and path widths of this section of the track were in evidence. Issues relating to the surface of the proposed path were also canvassed.

120 I am satisfied that Mr Marsh’s detailed concerns relating to construction of this path are reasonably held. However, I do not consider that the issues raised showed matters which were fundamental to the acceptability of the path along the agreed alignment. These concerns can and should be dealt with by way of conditions of consent.

121 There were also issues canvassed relating to the single northern approach pathway. During the course of the hearing, the proposed location of the northern pathway and the ramp structure forming part of it was moved. As a consequence of this move, concerns about location were resolved. However, concerns about its visual appearance – particularly that of the ramp component remained.

122 Ms Plate summarised her concerns about the northern pathway as being:

The bridge including ramps and associated embankment and loss of Pine trees on the north side would have a negative impact on the natural and open space qualities of Botany Wetlands.

123 Mr Marsh said:

The new mounded abutment to facilitate the new walkway will be 40m long and reach a maximum height of approximately 3.7m. In my opinion this will create a significant visual intrusion on the current landscape especially when viewed from the footway, adjacent to the wetland, to the north-west of the abutment.

124 Mr Ingham also expressed reservations concerning this mounded ramp element.

125 I concur in these concerns as the size and height of the mound supporting the commencing element of the ramp would have been significantly prominent and alien in its immediate landscape context.

126 However, in response to these concerns, the applicant indicated that it was prepared to accept a requirement that this ramp be an elevated structure for its entire length. I consider that this response would render this ramp acceptable as the intrusive size and height of the mound – the primary and dominantly offensive part of the proposed ramp – would be eliminated.

127 I turn, now, to what is the critical issue concerning the bridge – the acceptability in its landscape context of a bridge spanning the road at the proposed location. Although the evidence was not specifically compartmentalised to consider the questions of a bridge and the proposed bridge, separately, I consider that an assessment of these as two steps in arriving at the acceptability of the proposed bridge is appropriate in light of the way the case proceeded.

128 Indeed, in the course of his oral evidence, Mr Ingham indicated that a revised bridge design might soften [my term] some of his concerns but not sufficiently to overcome his basics objection to a bridge.

129 On the total issues of acceptability, Mr Ingham said, in his written evidence:

Secondly, it is my opinion that the proposed development does not support the primary objective of the Open Space - Recreation Restricted 6(c) zone as enunciated within the LEP. The proposed bridge is relatively close to identified wetlands and their associated riparian vegetation and passes through an area where there is an endangered ecological community. There are also a number of the secondary objectives of the zone which, in my opinion, would not be satisfied by the proposal. The issue of the aesthetics of the proposal will be discussed later in this report.

130 He also said:

131 He further said:

This particular part of Wentworth Avenue does not have any structures of significance along the side of the road. The only physical structure of any consequence is the two dimensional road itself. The lands both sides of the road are relatively pristine in the sense that they do not have buildings associated with the land and the land is visually very attractive because of the vegetation which exists and because of the wetlands which are adjacent to the roadway.

It is my opinion that the proposed pedestrian bridge would interrupt this aesthetically pleasing vista and character and would be an inappropriate intrusion into this particular character.

…………………….

I find myself in agreement with the findings of Councils' Urban Design Panel who considered this application in stating that "the bridge will obviously be extremely prominent from Wentworth Road (Avenue), and is unsympathetic to the existing heritage vegetation and land forms."
Botany Bay Council area is, in most of its areas, a built up and intensive urban area. The particular part of Wentworth Avenue which is here considered is one of the few areas of Botany Bay Council where there are natural elements on both sides of an important road. To interrupt these natural elements with a pedestrian bridge with advertising on that bridge would diminish significantly the character of this locality and the significance of the heritage and endangered vegetation area.

132 Mr Ingham’s summary of his conclusion in his first statement of evidence was, relevantly:

Not only will the bridge itself be an unfortunate intrusion into the visual aesthetics of the locality but the signage on the bridge will increase that intrusion and make the bridge, in my opinion, an unacceptable structure in this part of Botany Bay.

133 In his further statement in response to material from other witnesses, Mr Ingham concluded:

The further information provided by the applicant has not convinced me that the proposed bridge is an appropriate proposal environmentally or aesthetically in this location. Indeed the advertising proposed does not appear to comply with SEPP 64.

In my opinion, the public interest in protecting this immediate environment must take precedence over the private interest of golfers using the Eastlake Golf Course.

134 Ms Plate said:

The bridge including ramps and associated embankment and loss of Pine trees on the north side would have a negative impact on the natural and open space qualities of Botany Wetlands.

135 In passing, I note that the comments by Ms Plate relating to the ramp were resolved although her overall concern relating to the visual presence of a bridge in the vicinity of the wetlands was not.

136 Mr Blyth, on the other hand, presented a markedly different perspective of the visual context within which the bridge was located and should be assessed. Inter alia, his written evidence was:

The land on both sides of Wentworth Avenue consists of disturbed landscapes rather than pristine. As has already been pointed out there is a golf course abutting each side of the road and the actual location of the proposed bridge is in a road cutting which exhibits evidence of disturbance including weeds, erosion and refuse

………………

The structures and altered landscapes that occur within the defined wetland area are significant in size and extent. They occur with regularity and consist of roads, golf courses, large road overpasses (e.g. Southern cross Drive) and Golf Club buildings such as the new Lakes Clubhouse

……………….

It is pointed out that very great majority of land adjoining Wentworth Ave in the vicinity of the bridge is in use as golf courses and that the nearest wetland to the bridge is approximately 60m distant between Eastlakes and The Lakes Golf Course on the northern side of the road, situated at a level considerably lower than the road.

…………………….
The proposed bridge and advertising panel will only have limited relationship to the golf courses and wetland, with only limited distant oblique views being available from the northern side of the road.

137 The oral evidence given, relevantly, confirmed the positions outlined above from the written material.

138 Finally, for the main bridge structure, I turn to consider the relevant provisions of DCP 40. These are set out at (40) to (42) above. Mr Ingham said, in this regard:

DCP No.40 is a document which deals with the environmental protection of wetlands. These wetlands, in part, are adjacent to Wentworth Avenue and relatively close to the proposed pedestrian bridge. It will certainly be possible to view the pedestrian bridge from areas adjacent to the wetlands with the bridge forming a prominent structure in the visual context of the wetlands. Furthermore, several controls of the DCP relate to visual impacts on the wetland areas and also to the protection of Eastern Suburbs Banksia Scrub. It is my opinion that the proposed pedestrian bridge would not be consistent with the intentions and objectives of DCP No.40.

139 As can be seen from the wording of DCP 40’s general objectives in Part 1.4 and the social and cultural relevant objective in Part 3.4 (coupled with the relevant controls in this latter Part) they do not add matters, in any specificity [other than the requirements for natural and non-reflective materials], which are not already comprehended by the other matters set out in this broader discussion. Therefore, although in the general context, a more prescriptive DCP might have required a different sequence to consideration of issues (in order that the DCP might be a fundamental element in, or a focal point to, my decision-making process), I do not consider that the approach I have taken ignores or does not, in fact, give proper and significant weight to the relevant matters in DCP 40.

140 However, to address, first, the question of whether a bridge is acceptable, I have concluded that the general tenor of Mr Blyth’s evidence is to be preferred to that of Mr Ingham and Ms Plate. As a consequence, I have concluded that a bridge is acceptable at the proposed location.

141 I have reached this conclusion after considering the sharply differentiated positions outlined above; consideration of the information contained in the two large aerial photographs in evidence and from what I was shown and saw on the view.

142 I am satisfied that I must test these issues by considering from what locations a bridge might be seen, to any extent more than, perhaps, fleeting glimpses, and what the impact on the appreciation of the wetlands would be from an observer at any such location. To put it at the position most difficult for the applicant, I start by assuming that such an observer is aware of the heritage significance of the Botany wetlands.

143 For the purposes of this assessment, I am satisfied that a bridge would be capable of being so seen from the following locations:

From a vehicle travelling westward along Wentworth Avenue;
From a vehicle travelling eastward along Wentworth Avenue;
From The Lakes golf course (being from a green and two fairways to the north-west of the immediate element of the Botany Wetlands near the present western at grade crossing); and
From the fairways of the golf course itself.

144 For the council to succeed, I consider that I would need to be satisfied that the visual experience of the wetlands and their contextual setting would need to be effected, in a significantly adverse fashion, from at least one of these locations.

145 As to the general impact on a viewer (assumed to be a passenger and thus free to observe without the necessity of concentration on driving responsibilities) from a vehicle travelling westward along Wentworth Avenue, the curve approaching the proposed bridge site and the vegetation on the left of the road will limit the period during which the bridge will be in view. It is unlikely that such a viewer will see much of the wetlands until after they have passed the bridge site and come abreast the wetlands immediately to both sides of the road. This is because the roadside vegetation will limit viewing to anything other than glimpses through its breaks.

146 After they pass any bridge, it ceases to be part of their immediate contextual reference for the wetlands.

147 The consequence of the foregoing, in my view, is that this westward travelling, wetland informed passenger would not have such visual appreciation of the wetlands, as they would have during such transit, impacted in any appreciably negative fashion.

148 As to the general impact on a viewer (similarly assumed to be a passenger and thus free to observe without the necessity of concentration on driving responsibilities) from a vehicle travelling eastward along Wentworth Avenue, they will see the bridge at a greater separation. This viewer will have arrived at a viewing point by vehicle travelling generally westward along Wentworth Ave or in one having debouched from Southern Cross Drive, turning left into Wentworth Ave. Any difference in view appreciation as a consequence of the mode of arrival would be, in my assessment, de minimus.

149 This hypothetical, informed viewer will see a bridge at several hundred metres distance. The more immediate views to the wetlands on either side of the road will be partially obscured by the roadside vegetation which will limit oblique viewing. For this viewer to obtain a reasonable and properly informed appreciation of the wetlands, I am satisfied that they would need to turn to observe directly to the north or south to look along the reaches of the portion of the wetlands opened up to them through the trees. Doing so, of course, would render the sight of a bridge marginal and peripheral at most.

150 Having observed the wetlands in this fashion, this hypothetical, informed viewer might turn to look toward the east and will see a bridge – however, it will no longer be in the context of the wetlands. If there were some fleeting adverse contextual impression, it would certainly not likely to be sufficient (absent some adverse impact from the particular design of the bridge), in itself, to warrant refusal of an appropriate bridge structure.

151 As to the general impact on viewers from The Lakes golf course, a bridge will be seen against the backdrop of the local high point and may be screened to some extent – depending on the viewing location – by vegetation both on their own course and on the applicant’s course. The direction of play on the south-playing fairway is oblique and not directly toward a bridge at the proposed site. The direction of play on the north-playing fairway is both oblique and away from a bridge at the proposed site.

152 However, these golfers will be the persons most likely to have, after the golf course’s own players, some sustained view of a bridge across the wetlands. In this context, a well-designed structure (which added interest to the panorama and was set against a natural backdrop including the local high point) would not provide an adverse contextual appreciation of the wetlands. Indeed, if of an interesting design, a bridge might well draw their eyes in a positive fashion – thus enhancing an appreciation of the interlying wetlands. I do not consider that a well-designed bridge structure would cause unacceptable impacts, in this planning context, from this vantage point.

153 As to the general impact on viewers from the fairways of the golf course itself, Ms Plate concluded:

The proposal would facilitate use and appreciation of the Botany wetlands by users of the golf course.

154 In this regard, I accept her conclusion – indeed, as discussed further below in the context of the proposed signage, those using any bridge linking the two portions of the golf course will obtain a significantly enhanced appreciation of the wetlands and their setting. As a consequence, far from being a potential negative, this aspect of the bridge is a positive benefit in promoting understanding or appreciation of the values of the wetlands.

155 Being satisfied that an observer aware of the significance of the Botany wetlands would not find any significant adverse impact, aesthetically or in any heritage context, it follows that no observer who was less well informed would find any adverse impact. As well, to the extent that there might be some marginal adverse impact, in my assessment, this is more than offset by the positive benefits of the appreciation of the wetlands in their context by future users of a bridge.

156 For completeness, I do not consider that any significant visual impact, in any context of the visual catchment of the wetlands or otherwise, arises from the rear of any property in Bay Street (to the east of the proposed bridge site) and I was certainly not asked to inspect the outlook from the rear on any of these properties. No resident in this vicinity made any objection to the proposal.

157 Finally, although not specifically put as an entirely abstract context absent any possible viewer, as there is clearly no physical impact on the wetlands from a properly and competently constructed bridge and ancillary structure nor any location from which there is an observable significant adverse impact (and, for one group of observers, a significantly enhanced appreciation of the wetlands), I am satisfied that there cannot be some theoretical adverse impact on the heritage or aesthetic values of the wetlands.

158 It therefore follows from the foregoing that I am satisfied that, for any observer who is aware of the heritage significance of the Botany wetlands, some appropriately minimally intrusive bridge at the proposed site would not adversely impact, to any relevant degree, on the heritage significance (and the appreciation of that significance) of the Botany wetlands.

159 However, I have also concluded that the specific design of the proposed bridge is not acceptable at the proposed location.

160 The bridge in this application is to be constructed from single reinforced and pre-stressed concrete V span with steel balustrades and steel support structures to accommodate advertising signage. It will also require safety screens which prevent objects being thrown from the bridge at vehicles passing below.

161 The location – as is evident from the foregoing discussion of the wetlands – is a location of some sensitivity. The acceptability of a specific structure, rather than the abstract concept of such a structure, requires careful consideration at this location.

162 The present proposed design is, as Mr Tyquin admitted, an “off the shelf” one. It is a conventional, heavy, bulky and uninteresting structure. Although an appropriate bridge might not leave any lingering negative impression on a non-course using viewer, I am satisfied that this there is a real and significant risk that this design might create such a negative.

163 I am satisfied that the benefits of increased appreciation of the wetlands from a bridge do not outweigh the impacts of the presently proposed design.

The role of “the public interest” (s 79C(1)(e) of the Act) in this matter

164 Having reached the conclusions set out above, I turn to consider whether the provisions of s 79C(1)(e) – requiring me to have regard to the public interest – warrants me setting aside the conclusion about the specific proposal.

165 The question of whether or not the construction of the bridge would provide public benefits was debated during the hearing.

166 For example, Mr Ingham said, in his written evidence:

The proposed bridge is not a public pedestrian bridge and is not required to meet the needs of the general community. It is a bridge which is proposed to meet the needs only of the Eastlake Golf Club and its patrons and staff and cannot therefore be said to fulfil a public purpose.

167 Essentially, the position put by Mr Hale was that the council regarded:

the bridge as entirely providing private benefits to the golf club and its patrons – whether members or paying players from the general populace or the club’s staff. the limited use that might be made by the bridge by casual joggers or persons exercising their dog and the like was not, in the council’s view, sufficient to alter the characterisation of these benefits; and
the safety issues raised by the club did not warrant setting aside the other planning matters raised by the council.

168 Mr Hale’s written submissions summarised the council’s position on the first of these matters as being:

169 I am satisfied that this proposition is misconceived.

170 In Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195; NSWCA 289, Mason P said, at para 81:

In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and AssessmentAct stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235).

171 I am entirely satisfied that there is a strong degree of public interest in eliminating the potentially fatal consequences of the inherent conflict between golfers and course service vehicles travelling along north/south routes and the high volume of vehicle traffic utilising the road during daylight hours.

172 I have reached this conclusion, looking more widely as Terrace Tower permits. Even accepting the council’s position that those who would use the bridge would be receiving a purely private benefit (which I do not necessarily do), I am satisfied that the protection of the motorists using the road from the risks to them of a collision with those crossing for golf course purposes is a legitimate and significant public interest consideration.

173 With respect to the second of the council’s propositions, Mr Hale’s written submissions summarised the council’s position as being:

23. While golfers are clearly uncomfortable in having to cross Wentworth Avenue and there is some danger or risk, the fact remains that golfers have been crossing Wentworth Avenue for at least a quarter of a century and there have been very few, if any, accidents.

174 I was provided with the results of the golf club canvassing its members for evidence concerning safety issues or accidents and “near misses” in crossing the road. I also heard oral evidence from a number of the golf club’s members of their own experiences over a number of years. This evidence confirmed the council’s position that “golfers are clearly uncomfortable in having to cross Wentworth Avenue and there is some danger or risk”.

175 Only one incident of direct collision between vehicle and golfer was provided to me as part of this evidence. That incident is recorded in a summary note by a golf club member named Yi Ceng Chen. Mr Chen also provided a formal statement confirming and elaborating on this. However, for these purposes, the summary note is sufficient. It is in the following terms:

Accident happened in November 1993. Knocked down by a speeding motorcyclist. Broken left wrist, broken two rib bones. Broken left leg. Operation four times. Hospitalised more than 3 months in Prince of Wales Hospital.

176 A further incident causing injury to a golfer is recorded in the following terms:

Just a quick note regarding an incident which happened a few years ago.

I was playing with a member named Les Powell who rode a mini bike around the course. On this day he crossed the road across from the 13th hole. While he was crossing, a car came speeding down the road and almost hit him! As he managed to get to the other side he lost control and his leg smashed into the copper log hand rail. Les was about 75 years of age at the time and it tore into his thigh muscle .
Les was OK in the end but it was quite distressing for all involved. Especially considering his age and agility. And it also begs to question, what if he was walking and didn't have his mini bike, which obviously allowed him to cross the road faster then if he was walking?!

177 Numerous other instances of “near misses” are recorded. One graphic instance is noted in the following terms:

I wish to bring to your attention a matter that happened some 6 to 7 months ago when crossing Wentworth Avenue.

………………………………………..
On the day in question, crossing from the 13th hole, I was waiting until both sides of the road was clear. On noticing that it was clear, I preceded to cross the first section of the road when suddenly I noticed a speeding panel van (in the left lane) heading straight for me. Apparently he must have been travelling so fast that he did not notice me until the very last minute. He braked sharply and his van swerved severely across the road into the right lane. Fortunately for me and fortunately also that there were no cars at the time in the right lane.

178 I also undertook a crossing, in each direction, at the points used by golfers. I consider that there was only moderate traffic flow at this time. However, having done so, I can well appreciate the lack of comfort in crossing at either point and the real sense of danger and risk in doing so.

179 Mr Karikios, a member of the golf club and a consulting engineer, gave uncontradicted evidence concerning the current crossing points and their degree of compliance with the Stopping Sight Distance (SSD) requirements in the RTA’s publication Road Design Guide. Mr Karikios concluded that:

The eastbound SSD complies with the RTA requirements. The westbound SSD to the crest complies with the RTA requirements, to the central median, however, the SSD, is obstructed when crossing the westbound carriageway due to obstructions, ie vegetation, landform and property boundaries to Bay Street. For further details refer to Section 5.6 Horizontal Curves. The westbound SSD after the crest does not comply in terms of distance requirements, and is further obstructed be vegetation adjacent to the westbound carriageway. The crossing from the 13th and 14th holes is further reduced in safety by the fact that all users must reach the edge of the carriageway to gain a view of oncoming vehicles.

180 Mr Karikios also concluded, with respect to the sight distances at horizontal curves, that:

The road alignment at the eastern most crossing is located within a horizontal curve. In this situation a horizontal stopping sight distance is required for the sign posted speed, due to the presence of an obstruction off the pavement, in this case the existing landform and vegetation and the existing property on the corner of Wentworth Avenue and Bay Street. Due to these constraints, a direct horizontal sight distance line is not available. In this case, partial benching ie widening and flattening of the embankment adjacent to the 6th tee has taken place to assist in the provision of an adequate horizontal sight distance but is not adequate.

181 Thus it can be seen that, as well as being anecdotally and intuitatively unsafe, there are also significant non-compliances with the RTA’s SSDs.

182 The proposition put by Mr Hale, for the council, reduced to blunt Darwinian terms, is that no one has been killed and that the injury toll is not sufficient to warrant there being any public interest in permitting what the council considers to be an unacceptable development.

183 As noted earlier, the golf course generates ~ 135,000 crossings of the road per annum.

184 As also noted earlier, the road carries ~ 1,500,00 vehicle movements per annum.

185 It is clear to me from my direct experience of the two crossings coupled with the numbers set out in the two paragraphs immediately above that the more rational approach is to conclude that it is miraculous that there have not been more accidents or some fatalities.

186 Whilst a “body count” approach may be legitimate in some broader public policy considerations of resource allocation from the public purse, I do not consider it to be the appropriate approach in this case – given the very real risk that a fatality is a not unreasonably foreseeable possibility if the present position continues and that there is no question of competition for scarce public funding monies.

187 However, I do not consider that these aspects of the public interest warrant setting aside my rejection of the specific design. Therefore, having rejected the Darwinian approach to the question of public interest and entirely consistent with the cautiously facultative approach to Class 1 appeals adopted in recent years by the Court, I turn to consider how I should approach the possibility of another type of bridge design being acceptable - even though that which is presently proposed is not acceptable.

Alternative bridge designs

188 Some limited material was provided concerning possible alternative bridge designs – photographs of more skeletal designs used on the M7 were tendered. The applicant did not seek to suggest that these met its technical requirements for carrying equipment or that the proposed advertising could be mounted on such a structure. However, nor did the applicant suggest that such a design might not be so capable.

189 The applicant did tender a letter to the council’s General Manager (dated 25 February 2005) dealing with some options but it did not deal with the possible design discussed in the immediately preceding paragraph.

190 Having concluded that the specifically proposed bridge structure is not acceptable, I considered whether I should simply leave the applicant to consider some different future application. I have decided I should not but should permit a revised design of the nature of the more skeletal designs used on the M7 – if the applicant wished to do this.

191 I have so concluded because I am satisfied that a structure of this nature would resolve the disbenefits of the present proposal.

192 By dealing with the issues in this fashion, I have avoided making gratuitous comments which might appear to prejudge some future proceedings concerning some otherwise hypothetical application (thus avoiding the path commented upon unfavourably by Bignold J in Manzie v Willoughby City Council 96 LEC 26).

193 Indeed, the process I am following is that now considered appropriate in Class 1 development appeals – that of permitting revised plans if a development is generally approvable but not in the specific form proposed in the development application before the Court.

194 Although a new bridge design is required (and the council will need to satisfy itself as to the structural adequacy of that design – at the applicant’s cost) – none of the matters canvassed in these proceedings will arise for further consideration. I do not, therefore, consider it appropriate or in the public interest to send the applicant back to the beginning of the process again. Nor do I consider it necessary to require or permit any advertising of a revised design as its changed impact is purely ameliorative.

Should the SEPP 1 objection to compliance with a development standard in SEPP 64 be sustained?

195 State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64) is an instrument which is facultative in that, in various circumstances, it over-rides local planning controls.

196 SEPP 64 both sets development standards for permitting and provides the framework for assessing and regulating permitted public advertising. Both aspects are relevant in the present instance.

197 SEPP 64 provides, in cl 24, a relevant permissive element and a relevant development standard. The applicable portions of cl 24 read:

24 Advertisements on bridges

(1) A person may, with the consent of the consent authority, display an advertisement on a bridge.

(2) The consent authority may grant consent only if:

(a) the advertisement is located on or is contained within the main horizontal span of the bridge or, in the case of a railway bridge, on an abutment to the bridge, and

(b) in the case of:

i) a pedestrian or road bridge, the advertisement does not protrude more than 1,000 millimetres above the road level of the bridge and sightlines of people using the bridge will not be obstructed by the advertisement, and
ii) …………..

198 The development standard in cl 24(2)(b)(i) sets a restriction on the height of advertisements above bridge road level. The proposed sign panels breach this height restriction.

199 Compliance with this development standard is amenable to being overridden by objection pursuant to State Environmental Planning Policy No. I (SEPP 1).

200 The applicant included, with the supporting material for the development application, an objection under SEPP 1 to compliance with this development standard contained in cl 24(2)(b)(i). If this objection is sustained, the development standard limiting the height of advertisements above the level of the deck of the bridge will not remain an impediment to the proposed sign panels. However, the panels would still require to be tested against the merit assessment matters brought into play by cls 8, 17, 18 and 19 of SEPP 64.

201 The tests to be considered when addressing an objection pursuant to SEPP 1 were set out Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. These tests are:

First, is the planning control in question a development standard?
Second, what is the underlying object or purpose of the standard?
Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act?
Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?
Fifth, is the objection is well founded?

202 It is agreed that there is a development standard which is breached by the proposed signage panels and that it is set out in cl 24(2)(b)(i) of SEPP 64. This development standard restricts the height of advertisements to a maximum of 1,000 millimetres above the road level of the bridge.

203 In the applicant’s SEPP 1 objection, Mr Blyth wrote, concerning the underlying purpose of this standard, that:

The particular clause of the SEPP has no specific objectives. The relevant overall objectives of the SEPP are found at Cl.3 and are:

3 Aims, objectives etc
(1) This Policy aims:

(a) to ensure that signage (including advertising):

i is compatible with the desired amenity and visual character of an area, and
ii provides effective communication in suitable locations, and
iii is of high quality design and finish

204 Mr Blyth postulated that no objective could be inferred from the specific provision.

205 This position was not accepted by Mr Ingham. In oral evidence, he opined that the words in cl 24(2)(b)(i) – sightlines of people using the bridge will not be obstructed by the advertisement – provided strong guidance to the underlying purpose of the standard. I understood his view to be that the height limit was set so that ordinary users of the bridge will have the benefit of the enhanced outlook coming from such a vantage point.

206 I am satisfied that Mr Ingham’s opinion is preferable – indeed, it is difficult to draw any other reasonable conclusion under the circumstances.

207 I am satisfied the answer to the third Winten question is affirmative.

208 In the context of whether it was unreasonable to comply with standard in light of what I accept is its proper underlying purpose, the position subsequently adopted in oral evidence by Mr Blyth was that it was relevant and appropriate to consider the degree to which the view from the bridge would be interrupted and the extent and benefits of the new views created.

209 The bridge length from which entirely new views of the wetlands could be obtained is ~35 m. Of this, 12.6 m would be removed by the over height signs if they were permitted. Thus, over 60% of views capable of creation by erection of a bridge would be created by this proposal.

210 Ms Plate specifically drew attention to the fact that, in this instance, the new, distinctly higher vantage point from which users of the golf course could view the wetlands was a positive – indeed a significant one.

211 This new positive vantage point would be enjoyed on ~ 135,000 crossings per annum. Without the signs there will be no bridge; without the bridge there will be no new viewing of this type; without this viewing, there will be no enhanced understanding possible of the significance of the wetlands.

212 As a consequence of this, I consider it would be unreasonable to require observance of the sign height standard as to do so would be to deny these significant benefits.

213 Having so concluded, it follows that the SEPP 1 objection is well founded and should be sustained.

Is the proposed advertising signage acceptable?

214 Merit assessment matters are brought into play by cls 8, 17, 18 and 19 of SEPP 64.

215 The provisions of cl 8 call up both the general objectives of SEPP 64 contained in cl 3 (1) (a) and the Assessment criteria contained in Schedule 1.

216 The provisions of cls 17and 18 are applicable as, relevantly between them, they make specific additional provisions for advertisements which are greater than 20 square metres and/or are within 250 metres of, and visible from, a classified road. In the present instance, the advertising structures are both greater than 20 square metres in area and are within 250 metres of, and visible from, the road (which is a classified road).

217 The provisions of cl 19 are not relevant as the signs are not proposed to exceed 45 sq m (they each being 42.84 sq m in area).

218 It is convenient to deal first with the requirements of cls 17 and 18.

219 Cl 17(3), dealing with advertisements with a display area greater than 20 sq m, requires a number of steps to be undertaken.

220 Cl 17(3)(a), as to its first limb, has been satisfied as a consequence of the documents and evidence in these proceedings.

221 Cl 17(3)(a), as to its second limb, this is discussed in the SEPP 64 merit assessment below.

222 Cl 17(3)(b) and (c)(i) and (ii), as I understand it, have been met.

223 Cl 18 provides that a consent authority must not grant development consent to the display of an advertisement (with an area of greater than 20 sq m and which is within 250 metres of, and visible from, a classified road) without the concurrence of the RTA.

224 By letter dated 1 December, Mr Oliver, Guidance & Delineation Leader at the RTA, advised that, subject to a number of conditions (which are, as I understand it, acceptable to the applicant), the RTA did not object to the proposed signage.

225 The general aims of SEPP 64 are set out in cl 3 (1)(a). This provides:

3 Aims, objectives etc

(1) This Policy aims:

(a) to ensure that signage (including advertising):

226 Mr Ingham’s view, with respect to cl 3 (1)(a)(i), expressed in his written evidence, was:

Firstly, because the golf course lands do not permit advertising on them and the area of Wentworth Avenue is unzoned it is my opinion that nothing should occur within Wentworth Avenue itself which is not consistent with those adjoining zones. With advertising being prohibited within the adjoining golf course land it is difficult to accept that advertising within Wentworth Avenue, in this particular part of Wentworth Avenue, would be an appropriate and reasonable use.

227 With respect, he misconceives the import of “compatible” and applies it as a perfect synonym for “consistent”. The question of compatibility in is to be considered in the same fashion as earlier discussed concerning compatibility with respect to a bridge. In this context (and that of the first relevant test in the assessment schedule to SEPP 64), a more expansive interpretation should be taken.

228 In addition, I consider it entirely relevant and appropriate that I have already concluded that an acceptably designed bridge may be erected at the proposed site. To suggest that the necessary precursor structure of a bridge should be ignored in making a SEPP 64 assessment would be entirely misconceived.

229 Mr Ingham also expressed the view that:

It is my opinion that the proposed advertising will compromise the views of motorists as they drive along Wentworth Avenue. Wentworth Avenue is a relatively natural area in this particular location and the imposition of a bridge with advertising on it would, in my opinion, change in a significant manner the pleasant outlook and scenic character of this particular location. It will, in my opinion, dominate the skyline for motorists and will reduce the quality of the vistas which presently prevail. The bridge will certainly not enhance the natural setting and the appreciation of bushland which occurs along this part of Wentworth Avenue.

230 Of the viewing locations discussed earlier for the wetlands, the same four apply for viewing the sign, namely:

From a vehicle travelling westward along Wentworth Avenue;

From a vehicle travelling eastward along Wentworth Avenue;

From The Lakes golf course (being from a green and two fairways to the north-west of the immediate element of the Botany Wetlands near the present western at grade crossing); and

From the fairways of the golf course itself.

231 Mr Blyth expressed the opinion that:

The visual impact of the sign has largely been confined to the road corridor. Due to the nature of the landform other opportunities to view the sign are limited and would be available from the golf courses on the northern side of the road. Such views will be generally distant, oblique and partial in their scope;

232 From the view, it was obvious that what Mr Ingham describes as bushland which occurs along this part of Wentworth Avenue is largely undistinguished and was punctuated by roadside debris and litter.

233 The context within which the SEPP 64 compatibility is to be assessed includes a permitted bridge – this section of the road should no longer be assessed on merely the present landform. Thus the four hypothetical viewers in (230) will see a bridge as well as other aspects in the local landscape. I am satisfied that, undertaking the assessment on the assumption of a bridge being in view, the proposed signage does not offend cl 3 (1)(a)(i).

234 If I be wrong about notional inclusion of a bridge as part of the assessment of compatibility (although I find it difficult to see how this might be as, unlike the classic conundrum of the chicken and the egg, in this instance the bridge must certainly come before the sign), I am separately satisfied that the opinion expressed by Mr Blyth is the correct and preferable one in this context. On this basis, the proposed signage still does not offend cl 3 (1)(a)(i).

235 Those matters arising from cl 3 (1)(a)(ii) and (iii) are not contended by the council, as I understand it, to be breached by the proposal.

236 The assessment criteria contained in Schedule 1 and to be applied (omitting those that are presently irrelevant) are:

1 Character of the area

• Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

2 Special areas

• Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

3 Views and vistas

• Does the proposal obscure or compromise important views?
• Does the proposal dominate the skyline and reduce the quality of vistas?

4 Streetscape, setting or landscape

• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?
• Does the proposal contribute to the visual interest of the streetscape, setting or landscape?
• Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

5 Site and building

• Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

6 Associated devices and logos with advertisements and advertising structures

• Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

7 Illumination

• Would illumination result in unacceptable glare?
• Would illumination affect safety for pedestrians, vehicles or aircraft?
• Would illumination detract from the amenity of any residence or other form of accommodation?

8 Safety

• Would the proposal reduce the safety for any public road?
• Would the proposal reduce the safety for pedestrians or bicyclists?
• Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

237 Assessment criterion No 1 has been dealt with above.

238 Assessment criterion No 2 has been dealt with above.

239 Assessment criterion No 3, as to the first limb should be answered “yes” but in the context of creating significant additional valuable views – as discussed earlier. As to the second limb, I am satisfied that the answer is “no” for reasons dealt with earlier.

240 Assessment criterion No 4, all three limbs should be answered “yes”. To the extent that the third such answer is a negative, the signage will be viewed against the immediate backdrop of a visually interesting bridge structure and/or the natural landscape of the local high point to the south. This is an acceptable context.

241 Assessment criterion No 5 is, in effect, answered “yes” as a consequence of the sustaining of the SEPP 1 objection.

242 Assessment criterion No 6 is answered “yes” but the details would be provided in the revised plans – nothing negative and incapable of rectification by condition can arise from this conclusion.

243 Assessment criterion No 7, as to all limbs, can be answered “no”.

244 Assessment criterion No 8, as to all limbs, can be answered “no”. In fact, as to the second limb, by creating financial viability for a bridge, the signage provides significant increases in such safety!

245 Finally, I must turn to Draft Amendment No 28 to the LEP – as noted at (38) and (39) above.

246 The proposed provisions of cl 5(8A)(a) and (b) are encompassed by the earlier discussion of compatibility and require no further consideration.

247 The proposed provisions of cl 5(8A)(c) are not relevant as there are no other signs in the general (let alone immediate) vicinity and thus matters of “clutter” cannot arise.

248 The proposed general advertising provision addresses zones not including unzoned land. It is therefore of little consequence in these proceedings. If I be wrong about this, the elements (a) to (d) are addressed and satisfied – either expressly or by necessary implication – by the earlier discussion on signage matters. Element (e) is either irrelevant or, if to be answered, may be answered “satisfied”.

249 Having considered all possibly relevant matters relating to the proposed signage, I have concluded that there is no impediment to the approval of the two signs

Conclusion

250 In summary, I have reached the following conclusions:

No species impact statement is required provided the applicant commissions satisfactory detailed material from Mr Introna concerning ameliorative measures for the ESBS;
I do not need to consider alternatives to a bridge as, in the relevant context, there are none;
A bridge at the proposed site is acceptable:
The present proposed bridge is not an acceptable design;
A bridge of a design of the more open span type (of which a photograph was in evidence of a bridge above the M7 Motorway) would be acceptable at the proposed location;
Advertising on a bridge is permitted at this location as a consequence of cl 24(1) of SEPP 64;
The SEPP 1 objection to compliance with cl 24(2)(b)(i) of SEPP 64 should be sustained;
Assessment of the proposed advertising panels pursuant to the merit assessment criteria of SEPP 64 finds them to be acceptable if erected on a bridge of a design of the more open span type; and

The public interest in eliminating the potentially fatal consequences of the inherent conflict between golfers and course service vehicles travelling along north/south routes and the high volume of vehicle traffic utilising Wentworth Avenue, during daylight hours, acts to render it in the public interest to permit the golf club the opportunity to consider whether it wishes to amend the application to enable consent being given to a bridge of an acceptable design.

Directions

251 It follows from these conclusions that I am not in a position to issue final orders of the Court in this matter. I therefore give the following directions:

The applicant has until the close of business on Thursday 31 August 2006 to file and serve a written undertaking that all future costs and expenses of the council (as agreed or assessed) and all future costs of Mr Introna’s involvement are to be borne by the applicant;
The applicant has until the close of business on Wednesday 6 September 2006 to file and serve revised plans for a bridge consistent with this decision;
The applicant has until the close of business on Wednesday 20 September 2006 to file and serve a detailed management plan for the ESBS prepared by Mr Introna – implementation of which plan will give effect to the ameliorative measures set out in paragraphs (51) and (54) of this judgment;
The respondent is to file and serve revised conditions of consent by the close of business on Wednesday 20 September 2006;
If the conditions of consent are filed electronically by e-Court, a separate Court communication is to be sent advising that these have been filed;
The respondent is to file and serve any report on the structural adequacy of the revised plans by the close of business on Wednesday 20 September 2006;
The applicant has until the close of business on Wednesday 27 September 2006 to file and serve any report in response to any report of the respondent pursuant to (6);
The matter set down for mention before me at 9.00 am on Thursday 28 September 2006,
Liberty to re-list before me on two days notice if any matters require further consideration arising out of these directions; and
If the applicant fails to comply with direction (1) or indicates to the respondent and the Court, prior to Wednesday 6 September 2006, that it does not wish to file revised plans, the appeal will dismissed without further hearing and Development Application 05/123 for the construction of a pedestrian and service vehicle bridge to span Wentworth Avenue, Pagewood, will be determined by the refusal of development consent.

Commissioner of the Court

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Citations

Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343

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CITATION:	Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343
PARTIES:	APPLICANT Eastlakes Golf Club RESPONDENT Botany Bay City Council
FILE NUMBER(S):	11019 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Threatened species Visual impact
LEGISLATION CITED:	Botany Local Environmental Plan 1995 Development Control Plan No. 40 - Environmental Protection of Wetlands Threatened Species Conservation Act, 1995 State Environmental Planning Policy No. 64 – Advertising and Signage State Environmental Planning Policy No. I – Development Standards
CASES CITED:	Botany Bay City Council v Remath Investments No.6 Pty Limited (2000) 50 NSWLR 312; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186; Smyth v Nambucca Shire Council & Anor (1999) 105 LGERA 65; Deniliquin Municipal Council v Murray Shire Council NSWLEC (unreported – 22 July 1987); Coffs Harbour Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185; Dem Gillespies v Warringah Council 124 LGERA 147; [2002] NSWLEC 224; Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195; NSWCA 289; Manzie v Willoughby City Council 96 LEC 26; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
DATES OF HEARING:	15, 16, 17 and 25 May 2006
DATE OF JUDGMENT:	08/23/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso, barrister INSTRUCTED BY Cutler Hughes & Harris RESPONDENT Mr T Hale SC INSTRUCTED BY Houston Dearns O'Connor

[2006] NSWLEC 343

23/08/2006