GHD Pty Ltd v Palerang Council

[2009] NSWLEC 1342

Land and Environment Court

of New South Wales

CITATION:	GHD Pty Ltd v Palerang Council [2009] NSWLEC 1342
PARTIES:	APPLICANT GHD Pty Ltd RESPONDENT Palerang Council
FILE NUMBER(S):	11000 of 2008
CORAM:	Brown C - Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- extraction of material and the filling of land to create a 40 lot residential subdivision - the impact on flooding - consistency with plan and zone objectives - consistency with the principles of ESD - riparian, geomorphological and hydrological impacts - stormwater disposal - noise - flood free access
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Yarrowlumla Local Environmental Plan 2002 NSW State Rivers and Estuaries Policy.
CASES CITED:	Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 Dem Gillespies v Warringah Council [2002] NSWLEC 224 Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 Minister for Planning v Walker (2008) 161 LGERA 423
DATES OF HEARING:	11, 12, 13 August 2009
DATE OF JUDGMENT:	16 October 2009
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister SOLICITORS Gadens RESPONDENT Mr I Hemmings, barrister SOLICITORS Williams Love & Nicol

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Pearson C

16 October 2009

11000 of 2008 GHD Pty Ltd v Palerang Council

JUDGMENT

1 COMMISSIONERS; This is an appeal against the refusal of Development Application DEV.2007.0360 by Palerang Council (the council) for the extraction of material and the filling of land to create a 40 lot residential subdivision at Turallo Terrace, between Duralla Street and Mecca Lane, Bungendore.

2 The proposed development requires approval under Fisheries Management Act 1994, National Parks and the Wildlife Act 1974, Protection of the Environment Operations Act 1997, and the Water Management Act 2000, and is integrated development pursuant to s91 of the Environmental Planning and Assessment Act 1979 (the EPA Act). An Environmental Impact Statement accompanied the development application.

The site

3 The site is approximately 133.8 ha and consists of Lots 273, 275 and 279 in DP 754915 and part Lot 1 in DP 747767 and is located on the north eastern side of Bungendore. The Goulbourn-Bombala Railway is located to the north-west. Lots 273, 275 and 279 are located on the northern side of Turallo Terrace and have a combined area of around 6.5 ha. Residential development within the existing village of Bungendore is located on the opposite side of Turallo Terrace. Lot 1 is located to the north of Lots 273, 275 and 279 and is separated from them by Turallo Creek. That part of Lot 1 to be used for the subdivision has an area of around 11.2 ha.

4 Turallo Creek is located within a well defined floodplain that extends around 200 m to the north and around 100 m south to the creek. An unnamed tributary of Turallo Creek discharges into the creek near the northern end of Mecca Lane. The remainder of the site comprises pasture land that is typically covered with grass and isolated trees. There is little native riparian vegetation along the creek corridor or across the adjoining floodplain areas.

The proposal

5 The proposal provides for a 40 lot residential subdivision (see Attachment 1). The proposed lots are to be largely placed above the 1 in 100 year flood level through the extraction of material from the site and the importation of some additional fill. The excavation provides for approximately 46,800 cu m to be removed from Lot 1. The fill will be excavated, transported and compacted using a range of plant. A further 18,000 cu m is to be imported to the site.

6 Turallo Creek will still accommodate low flows, and higher flows will also be diverted through a series of landscaped ponds created through the extraction of material to provide fill for the proposed residential lots. The application proposes that the existing channel will largely be undisturbed, except for the construction of temporary crossings and placement of a small grade control structure at points of high velocity channel bed scour. The latter will merge into the existing channel form and be at current bed level. The right bank will be reshaped over sections to a flatter grade for construction of "offline" wetlands and provision of stabilised inlets and outlets to the wetlands. The left bank, where currently unstable, will be provided with rock protection to the toe of the bank and the upper bank will be graded and revegetated.

Relevant planning controls

7 The land to be developed for the residential lots is within Zone No 2(v) (Village Zone) and the land north of Turallo Creek (Lot 1) containing the area of the extraction of fill is within Zone No 1(a) (General Rural Zone) under Yarrowlumla Local Environmental Plan 2002 (LEP 2002).

8 The objectives for Zone No 2(v) are:

(a ) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community,
(b) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land,
(c) to control village development so as to achieve the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets.

9 The objectives for Zone No 1(a) are:

(a) to protect the agricultural potential of rural land and to prevent the fragmentation of viable rural holdings,
(b) to prevent premature and sporadic subdivisions and to ensure consolidation of urban areas, thus enhancing the prospect of the economic provision of public services,
(c) to prevent the subdivision of land on the fringe of urban areas into small allotments that may prejudice the proper layout of future urban areas,
(d) to ensure that development occurs only on land which is suitable for, and economically capable of, the proposed development and so as not to create conflicting uses,
(e) to allow the use of land within the zone for agricultural purposes and for a range of other appropriate purposes, while minimising conflict between them,
(f) to restrict the establishment of inappropriate traffic-generating uses along arterial and main road frontages,
(g) to ensure sound management of land which has an extractive or mining industry potential and to ensure that development does not adversely affect the potential of any existing or future extractive industry,
(h) to permit the development of industries that are appropriately located in the rural environment,
(i) to ensure that any effect development will have on threatened plant and animal species or regionally significant grassland and grassy woodland communities is taken into account.

10 Clause 3 provides aims and objectives for LEP 2002 and states:

( 1) The aim of this plan is to introduce planning controls that will encourage ecologically sustainable development, being development which satisfies the principles of ecological (environmental, economic and social) sustainability set out in Schedule 1, taking into account the ACT and Sub region Planning Strategy September 1998 and Murrumbidgee Catchment Management Plan copies of which are available from the office of the Council
.
(2) The objectives of this plan are as follows:
(a) for rural land:
(i) to ensure that rural land is developed in accordance with the principles of ecologically sustainable development, and
(ii) to encourage the management, development and conservation of productive agricultural and horticultural land, and
(iii) to encourage the proper management and development of natural resources, and
(iv) to encourage the siting and management of development to avoid, as far as practicable, conflict between adjoining and nearby land uses, both within and between zones and with regard to likely future land uses, and
(v) to protect and conserve places of natural, historic and cultural significance, and
(vi) to enable provision of essential roads, transport and utilities infrastructure,
(b) for urban land:
(i) to ensure that urban land is developed in accordance with the principles of ecologically sustainable development, and
(ii) to encourage commercial, retail and professional services in established urban locations, and
(iii) to provide flexibility in residential living styles and increased urban amenity for residents, and
(iv) to protect and conserve places for natural, historic and cultural significance, and
(v) to protect and enhance the social welfare of residents, and
(vi) to enable provision of essential roads, transport and utilities infrastructure.

11 The principles of ecological sustainability as referred to in cl 3 are set out in Schedule 1 to LEP 2002. These are:

Principles of ecological sustainability

The following are principles of ecological sustainability:

1 The precautionary principle
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:
(a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
( b) an assessment of the risk-weighted consequences of various options. The principle requires decision-making to give the environment the benefit of the doubt.
2 Intergenerational equity
The present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations (that is, a partnership among all of the generations which may use or expect to benefit from the nation’s resources).

3 Conservation of biological diversity and ecological integrity
Conservation of biological diversity and ecological integrity should be a fundamental consideration.

4 Improved valuation, pricing and incentive mechanisms
Environmental factors should be included in the valuation of assets and services in accordance with the following principles:
(a) the polluter pays principle (that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement), and
(b) the users of goods and services should pay prices based on the full cycle costs of providing the goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes, and
(c) environmental goals having been established should be pursued in the most cost effective way by establishing incentive structures, including market mechanisms which enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

12 The principles are stated in terms similar to the definition of “ecologically sustainable development” (ESD) in s 6 of the Protection of the Environment Administration Act 1991, which is incorporated into the EPA Act by s 4 of that Act.

13 Clause 16(1) of LEP 2002 provides that before granting consent to the development of land, the consent authority must be satisfied that the carrying out of the development is consistent with the objectives of LEP 2002 and the objectives of the zone in which the land is situated. Clause 16(2) provides that before consenting to development of land, the consent authority must also consider a range of other matters. Relevantly, these include the vegetation cover, land capability (including soil resources and soil stability) and water resources (including the quality and stability of watercourses and ground water storage and riparian rights) (cl 16(2)(b)), future expansion of urban areas in the locality and the impact on any existing village (cl 16(2)(f)), vulnerability and exposure to natural disasters such as bush fires and floods (cl 16(2)(g)) and in the case of subdivision, whether each allotment to be created has a practical building precinct (cl 16(2)(f)).

14 Clause 21 provides matters for consideration in the subdivision of land within Zone 2(v), including:

( b) that the subdivision does not take in unsuitable areas such as floodplain land, and

15 Clause 39 contains definitions of 'floodplain land', 'flood planning area' and 'flood planning level'. These are:

floodplain land means:
(a) land that is susceptible to inundation by a probable maximum flood (PMF) event, being thee largest flood that could conceivably occur at a location based on current knowledge; or
(b) land considered by the Council to be subject to local stormwater flooding whether or not it is recorded as such on maps held by the Council.


flood planning area means land below the flood planning level (FPL) mapped for the purposes of defining a flood standard that has been adopted by the Council and is identified on the map marked "Bungendore Flood Map".

flood planning level means the annual exceedance probability (AEP) level of a 1 % (1 in 100 year) flood'

16 For the purposes of cl 39, the site is entirely within the 'flood way', the 'floodplain' and the 'flood planning area' on the Bungendore Flood Map, which was adopted by the council on 26 March 2002 and came into force on 12 June 2002.

17 Clause 40 contains provisions specifically relating to the development of 'floodplain land'. -Clause 40(1) requires the Council to take into consideration a number of specific matters before granting consent to the development of floodplain land. These are:

(a) the extent and nature of the flooding or inundation hazard affecting the land;
(b) whether or not the proposed development would increase the risk or severity of flooding or inundation affecting other land or buildings, 'works or other land uses in the vicinity;
(c) whether the risk of flooding or inundation affecting the proposed development could be reasonably mitigated and whether conditions should be imposed on any consent to further the objectives of this plan;
(d) the social impact of fIooding on occupants, including the ability of emergency and support services to access, rescue and support residents of flood prone areas;
(e) the provision of any floodplain management plan, interim local flood policy or relevant development control plan adopted by the Council.'

18 Clause 40(2) precludes the consent authority from granting development consent to the erection of a building on any land within a 'flood way' area identified on the Bungendore Flood Map. The land the subject of the current development application is within a flood way area identified on the Bungendore Flood Map however the development application does not seek consent for the erection of any buildings, including any roadworks.

19 Clause 41 provides that a person must not, except with development consent, erect a building or carry out work for any purpose on land that is within a flood planning area. Before granting consent, the consent authority must be satisfied that adequate measures have been taken to:

(a) reduce the impact of flooding on the land; and
(b) prevent the incidence of structural damage likely to be caused to any buildings to be located on the land; and
(c) enable the evacuation of people and limit any cost to the community of evacuation; and
(d) prevent any cumulative adverse effect the development will have on flood behaviour.'

20 Yarrowlumla Council Development Control Plan – 2(V) Village Zone (the DCP) applies. Clause 1.6(f) provides objectives in relation to flooding. The relevant objective is:

• to avoid subdivision and unsuitable development within the "flood planning area" identified on the map held in the council offices and marked "Bungendore Flood Map".

21 Clause 9.1 provides specific provisions for flood hazard. These provisions generally replicate those in LEP 2002. Clause 10.1 provides requirements for subdivision.

The evidence

22 The council provided the following expert evidence:

• Dr Stephen Perrens on flooding and drainage issues,
• Mr Tim Smith, Licensing Officer with the Department of Water and Energy on geomorphological issues, and
• Mr Ian Rogers on roadworks and drainage issues.

23 The applicant provided the following expert evidence:

• Mr Viv Straw on planning issues,
• Mr Guy Lampert on geomorphological issues,
• Mr Stuart Gray on geomorphological issues,
• Mr John Wearne, on earthworks, roadworks and drainage issues,
• Mr Chris Thomas, on flooding and drainage issues, and
• Dr Ian Joliffe on flooding and drainage issues.

24 There was some overlap in the expert evidence on the flooding and geomorphological issues.

25 A number of residents from Turallo Terrace, Modbury Street and Gibraltar Street provided evidence on site. Their principal concerns related to:

• an unacceptable change to the character, view, outlook and visual amenity of the adjoining area and the Bungendore village,
• additional traffic, both pre-construction and post construction, including the effect on accesses to existing residential development,
• disturbance through noise, truck traffic movements and dust during construction,
• the extent of cut and fill,
• the impact of flooding, and
• the impact on the existing creek.
The contentions

26 The council originally contended that the proposed development was not permissible as cl 40(2) of LEP 2002 precludes the granting of development consent to development within a " floodway" identified on the Bungendore Flood Map. The proposed development proposes the subdivision of land for the purposes of residential development, and includes the construction of roads. The residential lots and the road are wholly within the "flood way" and as such approval cannot be granted.

27 This matter was ultimately not pressed by the council on the basis that any approval of this application would not grant development consent to any dwellings or roads.

28 The other contentions identified by the council relate to:

1. the proposed development underestimates the impact on flooding brought about by the placement of fill within the floodplain and the resultant impact on flood dynamics,
2. the proposed development has not satisfactorily demonstrated that it can be undertaken consistent with the principles of ESD,
3. the proposed development does not adequately address the riparian, geomorphological and hydrological issues of Turallo Creek, including the risk of channel avulsion,
4. the proposed development does not properly address the issue of stormwater disposal, including the use of a steep sided open channel drain,
5. the proposed development does not sufficiently address noise issues,
6. the proposed development does not adequately address the need for flood mitigation works resulting from the proposed development, near the corner of Mecca Lane and Turallo Terrace.

29 Contention 1 relating to the impact on flooding brought about by the placement of fill within the floodplain and the resultant impact on flood dynamics was further considered by Dr Perrens, Mr Thomas and Dr Joliffe at the hearing and there was general agreement that the proposed development would not unacceptably impact on flood storage and flood velocities when compared to pre development levels. Any remaining concerns could be addressed by conditions.

Is it the proposed development consistent with the relevant objectives of LEP 2002 and zone objectives?

30 Clause 16(1) of LEP 2002 imposes a barrier to the granting of consent, in that the consent authority must be satisfied that the carrying out of the development is consistent with the relevant objectives of LEP 2002 and Zone No 2(v) and Zone No 1(a). A finding of inconsistency with any relevant objective must result in the development application being refused and the appeal dismissed. The Court has generally adopted “consistent with” as meaning not antipathetic, nor incompatible or inconsistent with (see Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190) although the ordinary and natural meaning has also been used by the Court (see Dem Gillespies v Warringah Council [2002] NSWLEC 224).

31 In our view the proposed development is not consistent with the plan and zone objectives in two respects. The first relates to the second and third contentions in paragraph 28 above, namely whether the proposed development is consistent with the principles of ESD, in particular in relation to the riparian, geomorphological and hydrological issues of Turallo Creek. The second relates to the zone objectives for the 2(v) land on which the proposed residential subdivision is to be located.

1. Does the proposal ensure that the land is developed in accordance with the principles of ecologically sustainable development?

32 The relevant LEP 2002 objectives are

(2) The objectives of this plan are as follows:
(a) for rural land:
(i) to ensure that rural land is developed in accordance with the principles of ecologically sustainable development, and
(b) for urban land:
(i) to ensure that urban land is developed in accordance with the principles of ecologically sustainable development, and

33 There are no relevant zone objectives that directly relate to the issue of ESD.

The council’s evidence

34 Mr Smith is a Licensing Officer with the NSW Office of Water in the Department of Environment, Climate Change and Water (formerly the Department of Water and Energy). His role is to assess applications for Controlled Activity Approvals under s 91 of the Water Management Act 2000 (and its predecessor, the Rivers and Foreshores Improvement Act 1948). The development application was referred to the Department of Water and Energy to ascertain whether the development proposal would have a “minimal harm impact” on the stability of Turrallo Creek, in respect of any associated geomorphic issues and the additional of possible groundwater impacts. If considered acceptable, the Department would issue General Terms of Approval.

35 Mr Smith states that there are a number of relevant policies that need to be considered in any assessment of the development application. These are the

• NSW State River and Estuaries Policy,
• NSW Sand and Gravel Extraction Policy for Non Tidal Rivers,
• NSW Wetlands Management Policy,
• NSW State Groundwater Policy Framework Document,
• NSW Groundwater Quality Protection Policy, and
• NSW State Groundwater Dependent Ecosystems Policy.

36 Mr Smith’s initial assessment found that there was insufficient information provided to properly assess the development application against the relevant policies. While additional information was provided, it was Mr Smith's opinion that the proposed development did not fit within the policies administered by the Department and would unlikely to be approved. Given the location of the proposal adjacent to Turrallo Creek and the proposed impacts on Turrallo Creek and its floodplain, and the lack of mitigating offsets by the applicant against the proposed impact, the proposal could not be supported, and General Terms of Approval could not be granted.

37 Further information was provided to Mr Smith around the time of the hearing. In a written statement dated 11 August 2009 Mr Smith states that the additional information provided by the applicant was sufficient to undertake an assessment of the impacts of the proposal on the stability of the Turallo Creek environment. In relation to the impact on the town water supply, Mr Smith states that the lining of the wetlands has to be designed to withstand the pressure from the groundwater so that no seepage will occur through the lining if the water table is raised during a wetter period. We did not understand this to be an issue that could not be addressed through additional information and/or conditions of consent.

38 On the issue of geomorphology, Mr Smith maintained his opposition, both in the report of 11 August 2009 and in his oral evidence. He states that the present river style of channelised fill does not possess floodplain wetlands as one of its geomorphic units and consequently the establishment of wetlands would be inappropriate for this particular style of river as it would alter the natural variations of the landscape. This would be against Principles 2 and 3 of the NSW State Rivers and Estuaries Policy.

Principle 2 states:
Non-sustainable resource uses which are not essential should be progressively phased out.
Principle 3 states:
Environmentally degraded processes and practices should be replaced with more efficient and less degrading alternatives

39 Mr Smith further states that the wetland basins adjacent to the creek channel are also of concern. Primarily, in floodplain excavations of this type, a buffer of 100 m is required to prevent the river from being captured by the excavation through the possibility of avulsion and/or stream bank erosion. While this 100 m buffer is used on large rivers, a buffer of 40 m would still be appropriate in this case. As this buffer is not provided, Mr Smith is of the view that the proposal does not provide adequate protection against avulsion and/or stream bank erosion. Mr Smith raises additional concerns over the level of the wetland basins at a lower level than the bed of the creek. This potentially increases the risk of avulsion and/or stream bank erosion. These likely impacts are of sufficient importance to warrant the refusal of the application. While prepared to provide draft terms of approval, Mr Smith was of the opinion that the proposal should not be approved.

The applicant’s evidence

40 Mr Lampert states that the reshaping of Turrallo Creek and the creation of the wetlands will increase the morphological, ecological and hydraulic diversity of Turrallo Creek. The proposed design incorporates measures to minimise the potential for avulsion, protect vulnerable banks from erosion and limit channel incision at critical locations. This is consistent with the principles in NSW State Rivers and Estuaries Policy, particularly Principle 4 that provides for degraded areas to be rehabilitated and their biophysical functions restored.

41 In Mr Lampert's opinion, the proposed development is sustainable for a number of reasons including the design measures to minimise the potential for avulsion, the retention of the existing creek form where possible, the restriction on increased flow velocities within the channel, the reshaped creek is designed have similar features as the existing creek and increased revegetation and stabilisation works.

42 Based on the applicant’s flood study, the predicted velocity differences between pre-and post-development indicate that flow velocities will decrease for post-development conditions.

43 In response to Mr Smith's concerns on Principles 2 and 3 of the NSW State Rivers and Estuaries Policy, Mr Lampert states that in relation to Principle 2, grazing will be completely removed from the riparian zone and as a result the land will be managed through a combination of private ownership and local government management processes with an opportunity for participation by local community groups. In relation to Principle 3, Mr Lampert identifies the major degrading processes as grazing and the disruption to water flows caused by existing road and rail bridges adjacent to the site. With the approval, grazing activities will be removed and while it is impossible to remove the upstream and downstream bridges, the land will be reshaped and rehabilitated to minimise the impact of these bridges. These impacts include the concentration of water into narrow gullies with the resultant increased flow velocities. The wetlands will be created adjacent to the watercourse, which will fan out floodwater activity and reduce the flow velocity so that natural processes can be reintroduced into the locality.

Findings

44 A comprehensive analysis of the application of ESD principles is found in the judgment of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10, at paras [107]-[124]. In subsequent decisions, in particular Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, Preston CJ has elaborated on the particular principles of ESD. The two principles relevant in this matter are the principles identified as (1) and (3) in Schedule 1 to the LEP 2002, namely the precautionary principle, and conservation of biological diversity and ecological integrity.

Ecological Integrity

45 In considering the term “ecological integrity”, Preston CJ in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 states:

60 At a macro level, ecological integrity involves conservation of the ecological processes that keep the planet fit for life. They “shape climate, cleanse air and water, regulate water flow, recycle essential elements, create and recreate soil, and enable ecosystems to renew themselves”: IUCN, UNEP, WWF, Caring for the Earth: A Strategy for Sustainable Development , Oxford University Press, 1992 at p. 9.
61 Maintaining ecological integrity involves maintaining ecosystem health. Ecosystems become unhealthy if their community structure (species richness, species composition or food web architecture) or ecosystem functioning (productivity, nutrient dynamics, decomposition) has been fundamentally upset by human pressures: M Begon, C R Townsend and J L Harper, Ecology: From Individuals to Ecosystems, 4th ed, Blackwell Publishing, 2006, p. 645.
62 Maintaining ecological integrity also involves maintaining ecosystem functioning and ecosystem services. Ecosystem functioning is “the sum total of processes such as the cycling of matter, energy, and nutrients operating at the ecosystem level”: R A Virginia and D H Wall, “ Ecosystem Function, Principles of” in S A Levin (ed), Encyclopaedia of Biodiversity, Academic Press, 2001, Volume 2, p. 345. Ecosystem services are “the wide array of conditions and processes through which ecosystems, and their biodiversity, confer benefits on humanity; these include the production of goods, life support functions, life-fulfilling conditions, and preservation of options”: G Daily and S Dasgupta, “Ecosystem Services, Concept of”, in S A Levin (ed), Encyclopaedia of Biodiversity, Academic Press, 2001, Volume 2, p. 353.

46 Ecological integrity does not imply an absence of human interference in the biosphere, “but it does imply dramatically reducing the ‘ecological footprints’ of individuals and societies in the industrialised, consumption-oriented global North and South and keeping humanity’s overall ecological footprint well within the planet’s productive capacity”: S Wood “Voluntary Environmental Codes and Sustainability” in B J Richardson & S Wood (eds) Environmental Law for Sustainability, Hart Publishing, 2006, p.266.

47 We are satisfied that the NSW State Rivers and Estuaries Policy is a mechanism for promoting ecological integrity. The objectives of the NSW State Rivers and Estuaries Policy are:

To manage the rivers and estuaries of NSW in ways which
• slow, halt or reverse the overall rate of degradation in their systems
• ensure the long-term sustainability of their essential biophysical functions, and
• maintain the beneficial use of these resources.

48 The objectives are to be achieved thorough the application of six management principles. These are:

• those uses of rivers and estuaries which are non-degrading should be encouraged.
• non-sustainable resource uses which are not essential should be progressively phased out.
• environmentally degrading processes and practices should be replaced with more efficient and less degrading alternatives.
• environmentally degraded areas should be rehabilitated and their biophysical functions restored.
• remnant areas of significant environmental values should be accorded special protection.

• an ethos for the sustainable management of river and estuarine resources should be encouraged in all agencies and individuals who own, manage or use these resources, and its practical application enabled.

49 There was agreement between the experts that the watercourse is in poor condition and that there is potential for recovery if stressors including agriculture, willows and weeds, erosion and lack of vegetation were removed. The experts disagreed on the extent to which the proposal provides an opportunity that would not otherwise be present to rehabilitate the creek.

50 Mr Smith relies on Principles 2 and 3 to support his opinion that introduction of a geomorphic unit in the form of floodplain wetlands is not appropriate or typical even though this type of geomorphic unit may have occurred sometime in the past. We accept his conclusion that the proposed excavation for the purpose of constructing the wetland is not an essential use of the resources of the area and is a non-sustainable process for the purposes of Principle 2. If the excavation were regarded as being solely for the purpose of constructing the wetland it would be a potentially environmentally degrading process and in contradiction to Principle 3. The evidence before us, however, is that the construction of the wetlands is a response to, and consequence of, the proposed use of fill from Lot 1 DP 747767 for the proposed subdivision rather than obtaining fill from elsewhere. In oral evidence Mr Lampert accepted that the design had evolved over time and that the drainage engineer had approached the design of the wetlands on the basis that there would have been wetland there originally. We accept Mr Smith’s conclusion that the proposal is contrary to principle 3.

51 We are satisfied that the proposed development offends the principle that conservation of biological diversity and ecological integrity should be a fundamental consideration. The proposal does not ensure that the land is developed in accordance with this principle of ESD, and accordingly is not consistent with the objective in cl3(2)(a)(i) of the LEP 2002.

Precautionary principle

52 Both parties identified in evidence and submissions that there is an issue of whether the proposed excavation and construction of the wetlands raise a risk of avulsion and/or capture, and whether if there is, whether that risk is acceptable or can be managed. The precautionary principle provides, in part, that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The principle requires decision-makers to give the environment the benefit of the doubt. In Telstra at paras [125] –[183] Preston CJ set out the steps required for application of the precautionary principle.

53 The first threshold question is whether there is a “threat of serious or irreversible environmental damage”. First, we did not understand there to be any dispute between Mr Smith and Mr Lampert that there is a threat of environmental damage. The construction of the wetlands and the consequent potential for avulsion or bank erosion was acknowledged by both experts. A fundamental difference between the evidence of Mr Smith and Mr Lampert was that Mr Smith maintained that a buffer of at least 40 m would be required to prevent the possibility of avulsion and/or stream bank erosion of Turrallo Creek whereas Mr Lampert maintains that the proposed design incorporates measures to minimise the potential for avulsion and protect vulnerable banks from erosion, and that conditions could be imposed requiring monitoring and repair work. Further, Mr Smith’s evidence was that the current design which allows part of the wetland basin to be at a level below the bed of the creek increases the risk of an avulsion or capture of the creek through erosion. In oral evidence Mr Lampert accepted that the level of the base of the wetlands had not previously been drawn to his attention and that he would design it to approximate the creek level, rather than being below. On that basis, we prefer the evidence of Mr Smith that the design as proposed poses a significant risk of avulsion and/or capture, and that this can be regarded as posing a threat of serious environmental damage.

54 The second threshold step is whether there is a "lack of full scientific certainty", as to the nature and scope of the threat of environmental damage. Both Mr Smith and Mr Lampert are well-qualified and knowledgeable experts in this field and the fundamentally different positions adopted by these experts should not be simply seen as experts having different professional opinions. As noted above, Mr Lampert in oral evidence acknowledged that there is an issue as to the level of the base of the wetlands, and stated that he had focussed his attention on the entry and exit points in considering avulsion and stabilisation. In that context, we consider that there is a degree of uncertainty as to scope of the threat of environmental damage given the location and operation of the wetlands and their potential impact on Turrallo Creek.

55 Preston CJ in Telstra (at [149]) explains how the two threshold requirements work together:

149 If there is no, or not considerable, scientific uncertainty (the second condition precedent is not satisfied), but there is a threat of serious or irreversible environmental damage (the first condition precedent is satisfied), the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats: A Deville and R Harding, Applying the Precautionary Principle, Federation Press, 1997 at p. 31 and 34; J Cameron, “The precautionary principle: Core meaning, constitutional framework and procedures for implementation” in R Harding and E Fisher (eds), Perspectives on the Precautionary Principle, Federation Press, 1999, p. 29 at p. 37; and N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, 2005 at pp. 74-75 and 158.

56 We accept the evidence of Mr Smith that one way to reduce the risk of avulsion and/or capture is to have a buffer between the creek and the wetlands and that the distance proposed in this instance is insufficient to provide an adequate buffer. The consequence is that we are satisfied that the threat of serious environmental damage could be regarded as relatively certain, and that preventative measures are needed to control or minimise this. In this instance we are satisfied that in the absence of the buffer of 40m suggested as a minimum by Mr Smith, there are deficiencies in the design of the proposed wetlands and proposed preventative measures in assessing the potential impact on Turallo Creek.

57 We accept that the current condition of Turrallo Creek is relatively poor, however we did not understand there to be any disagreement that the creek environment could not be improved, if not naturally, but with some intervention. It was put to the Court that the subdivision provides for the rehabilitation of Turrallo Creek and that should be seen as a positive feature of the application. While this is undoubtedly correct, we are not satisfied that this provides a satisfactory reason for the approval of the subdivision application. In our view, the disbenefits of the proposed subdivision identified in the previous paragraphs significantly outweigh any benefits associated with the rehabilitation of Turrallo Creek.

58 This conclusion is not reached on the basis of the application of the precautionary principle. We are satisfied, however, that it would be a basis for refusal of the application having regard to the balancing of considerations required by s79C of the EPA Act.

2. Is the land suitable for the development?

59 Objective (b) for Zone 2(v) provides:

(b) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land,

60 The objective has two parts. First, the objective seeks any proposed development to recognise the natural and physical features of the village in which it is located: in this case Bungendore. Second, the objective seeks to prevent development in unsuitable land. Flood-prone land is given as an example of unsuitable land. If, in our opinion, the development is inconsistent with either part of the objective, then the application must be refused and the appeal dismissed.

61 The proposed development is permissible within Zone 2(v) and there was compliance with the relevant numerical standards for the creation of the proposed lots. For this reason, it could be said that the proposed development recognises some physical features of Bungendore. However, objective (b) goes beyond just compliance with the relevant subdivision standards and relates the proposed development to the natural and physical features of Bungendore.

62 Bungendore is characterised by generally older style dwellings with some newer dwellings on relatively large lots. It is surrounded by rural land consisting of large blocks of land used for predominantly grazing purposes. The site is at the interface of urban and rural land uses and is currently undeveloped and appears to be used for limited grazing purposes. There is a relatively gentle fall from Turrallo Terrace to Turrallo Creek apart from a bund wall to provide some flood protection to the properties around Turrallo Terrace.

63 The question to be answered is whether the development recognizes the natural and physical features of the village of Bungendore. In our view, the answer to this question must be answered in the negative for a number of reasons. First, the proposal has little regard for the natural topography through the placement of up to 2 m of fill over the whole site to raise the land above the flood level. Second, the batters that transition the fill area to the natural ground level near Turrallo Creek are up to 1.8 m in height and inconsistent with the generally flat or moderately sloping natural topography. Third, the use of vertical retaining walls in some locations adjoining Turrallo Creek provide a highly engineered element of residential development not seen elsewhere in Bungendore. This hard edge between the village area and rural area is inconsistent with the general features of the interface of village in rural areas in Bungendore . Fourth, the open drain and access bridges for existing dwellings between the development site and other properties in Turrallo Terrace do not represent the usual form of drainage in Bungendore that relies on natural grades and shallow grass swales to control overland flow of stormwater.

64 Pursuant to cl 16(1) of LEP 2002 we are not satisfied that the carrying out of the development is consistent with Zone 2(v) objective (b) and as such the application could be refused and the appeal dismissed for this reason alone.

65 Our conclusion that the proposed development is inconsistent with the objectives in cl 3(2)(a)(i) and (b)(i) of the LEP 2002, and the objectives of Zone 2(v) (objective (b)), is sufficient basis on which to dismiss the appeal. We note that issues considered in reaching this conclusion would also be relevant in considering more generally pursuant to s79C of the EPA Act whether the proposed development should be approved, both in considering “the public interest” as required by s79C(1)(e) (Telstra; Minister for Planning v Walker (2008) 161 LGERA 423), and in considering the suitability of the site as required by s79C(1(c).

66 For completeness, we will briefly address the other contentions.

Stormwater disposal

67 Mr Wearne and Mr Rogers disagreed on the approach to the stormwater design. The design provides for the redirection of existing drainage paths from land south of Turrallo Terrace around the development in a formed swale designed to convey these flows. Mr Wearne maintains that the diversion of these flows is an appropriate design response to stormwater flows on to the site from land to the south and provides the additional benefit of improved drainage of the land along the southern side of Turrallo Terrace. On the other hand, Mr Rogers states that the existing flow paths should not be modified and that the combination of flows proposed, requires the swale to be larger than desirable.

68 In general terms, we accept that the diversion of existing flow is necessary given the changed circumstances brought about by the urban development of a largely rural site and the need to formalise flows that currently occur largely because of the natural features of the site. Based on our site view, the existing uncontrolled stormwater flows occur over relatively flat depressions in the land rather than defined drainage channels. We do not however accept that the proposed drainage swale along Turrallo Terrace is an appropriate response given the steep batters, the proposed access arrangements for existing dwellings in Turrallo Terrace, the long-term maintenance problems identified by Mr Rogers and the inconsistent form of the swale when compared to other open drainage swales in Bungendore.

Noise

69 Noise, particularly during the construction phase, was a matter raised by a number of residents on-site. In accepting that noise is a potential problem, we are satisfied that noise associated with the construction phase could be appropriately dealt with through the imposition of conditions requiring a Construction Management Plan. This plan would identify the appropriate noise goals, the activities to be undertaken, the plant required to undertake those activities and timing of the works.

Flood free access

70 Dr Perrens, Dr Joliffe and Mr Thomas addressed the question of flood free access for the proposed lots. The concern relates to a low point at the Modbury Street intersection with proposed Road 1. Dr Perrens states that there should be a road evacuation route that array its continuously up from the development to the higher level in Modbury Street. While accepting that this is a desirable principle, Dr Joliffe states that this has been considered in the design however to achieve the evacuation route suggested by Dr Perrens there would be increase of earthworks, construction noise and potential access problems with existing properties in Modbury Street. On balance, Dr Joliffe does not consider this necessary as access is already flood free for the 1 in 100 year flood event.

Mr Thomas also agrees that Dr Perren’s approach is desirable, however it is more important when some part of the evacuation route is below the 1 in 100 year flood event. This, however is not the case for the proposed subdivision.

71 On balance, we agree with the position adopted by applicant’s experts. The planning level is the 1 in 100 year flood event and as flood free access is available in this storm event, we accept that the proposal is acceptable in terms of flood free access.

Orders

72 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application DEV.2007.0360 for the extraction of material and the filling of land to create a 40 lot residential subdivision at Turallo Terrace, between Duralla Street and Mecca Lane, Bungendore is refused.
3. The exhibits are returned.

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G T Brown
Commissioner of the Court

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Linda Pearson
Commissioner of the Court