Golfam Pty Limited v Penrith City Council
[2008] NSWLEC 323
•17 December 2008
Land and Environment Court
of New South Wales
CITATION: Golfam Pty Limited v Penrith City Council [2008] NSWLEC 323 PARTIES: Matter 10319 of 2008
Matter 41333 of 2007
APPLICANT
Golfam Pty Limited
RESPONDENT
Penrith City Council
APPLICANT
Penrith City Council
FIRST RESPONDENT
Golfam Pty Limited
SECOND RESPONDENT
Michael Raymond PrichardFILE NUMBER(S): 10319 of 2008; 41333 of 2007 CORAM: Sheahan J - Hussey C KEY ISSUES: Section 96 Modification :- flooding, amenity, safety and the public interest;
Injunctions and declarations - alleged breach of court granted consentCASES CITED: Golfam Pty Limited v Penrith City Council and Water Administration Ministerial Corporation [2006] NSWLEC 283 DATES OF HEARING: 15-17 December 2008 EX TEMPORE JUDGMENT DATE: 17 December 2008 LEGAL REPRESENTATIVES: Matter 10319 of 2008
APPLICANT
Mr D Briggs, Solicitor of
D G Briggs & AssociatesRESPONDENT
Mr M Fraser
SOLICITORS
DLA Phillips FoxMatter 41333 of 2007
APPLICANT
Mr M Fraser
SOLICITORS
DLA Phillips FoxFIRST AND SECOND RESPONDENT
Mr D Briggs, Solicitor of
D G Briggs & Associates
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJustice Sheahan
17 December 2008
EXTEMPORE JUDGMENT10319 of 2008 Golfam Pty Limited v Penrith City Council
41333 of 2007 Penrith City Council v Golfam Pty Limited & Anor
1 His Honour: The class 1 and class 4 proceedings currently before the court are the latest chapters in a long history involving Council, Mr Prichard (the Second Respondent in the class 4) and Golfam Pty Ltd (of which company Mr Prichard is the controlling director).
2 Both proceedings concern the establishment of a short-course 18 hole golf course on land adjacent to “Adventure Golf” between “Panthers World of Entertainment” complex and the Nepean River at Penrith.
3 The original development application was lodged with Council on 20 December 2002 and this court granted a development consent on 24 May 2006, by way of Consent Orders made by Commissioner Watts in matter 10143 of 2006 (“the 2006 class 1”). See [2006] NSWLEC 283.
4 The subject land is owned partly by a Panthers company and partly by Council and the proposed course will straddle Peach Tree Creek, a tributary of the Nepean River, prone to flooding at times of regional and local “events”. As integrated development is involved the State’s water authorities have taken a close interest in the project and the various proceedings.
5 Council has had ongoing concerns that the development (i) has not been taking place in accordance with the development consent and the approved plans (see Points of Claim filed 12 March 2008 in the current class 4 proceedings), and (ii) may cause environmental harm, including by the effects of flood flow on the changing topography, and loss of privacy on the part of some neighbours.
6 On 12 November 2007 the Council issued a notice directing the Respondents to take preventative action.
7 On 5 December 2007 the respondent company filed a class 1 appeal in matter no.11228 of 2007 (“the 2007 class 1”) challenging the Council’s notice.
8 On 24 December 2007 the Council responded by launching the current class 4 proceedings no.41333 of 2007 (“the class 4”), against both the company and Mr Prichard, seeking compliance with the development consent, and a series of related orders. The question of interlocutory relief came before me as Duty Judge on 10 January 2008. Various orders were made by consent, largely requiring sedimentation and related works, and compliance with the consent, and restraining operation of the golf course.
9 The parties were granted liberty to apply and the matter came back before the court on 22 January, 1, 8 and 15 February. A s 96 modification application was lodged on 8 February. On 15 February 2008 the List Judge ordered that the class 4 proceedings be set down and later that day the three days commencing 19 May were fixed as hearing dates. The 2007 class 1 was listed for mention on the first day of the class 4 hearing.
10 On 4 April 2008 the respondent company launched the current class 1 proceedings (10319 of 2008 – the “2008 class 1”) against the deemed refusal by the Council of the company’s s 96 modification application. The company acknowledges departures from the consent, but has contended that the works as executed will function at least as well as the works envisaged and approved by the consent.
11 When the class 4 matter came before me for hearing on 19 May, I ordered that the 2008 class 1 travel with the class 4 and the then current 2007 class 1. (The 2007 class 1 was then discontinued in June 2008, but I have kept the two closed 2006 and 2007 class 1 court files with the two current court files for easy reference).
12 At that hearing on 19 May both parties were represented (Mr Fraser of counsel appeared for Council and Mr Johnson of counsel for the Respondents) and counsel agreed to yet another set of Consent Orders.
13 Since May the two current matters, the class 4 and the 2008 class 1, have come before me for mention on 14 July, 28 July, 18 August, 15 September, 22 September, 26 September, 29 September, 28 October, 17 November, and 11 December.
14 Gradually the 2008 class 1 has come to occupy “centre stage” in the court’s management of the case as a whole. The orders I made in the class 4 on 19 May have largely been continued by the various orders made, by consent, since then, pending resolution of the issues at the centre of the class 1.
15 Major orders were made, again by consent, on 29 September.
16 The present position is that the company wants to (1) open at least part of the golf course as soon as possible to generate some cash, and (2) finish the project as quickly as it can, while, on the other hand, Council wants necessary certainty about flooding, safety, neighbourhood amenity, and other conditions of the current consent.
17 The primary task for the court this week has been the resolution of the following summary of the “contentions” filed by the Council:
· Flooding and drainage impacts
· Suitability of design parameters for the proposed embankments and ponds
· Creek rehabilitation
· Amenity impacts in terms of loss of privacy to adjoining residents
· Public interest matters
as a preliminary to the court’s consideration of what further action to take in the class 4 proceedings.
18 A lot of serious work has been done by the parties to clarify and resolve the outstanding issues, resulting in the agreement by the parties to consent orders. Commissioner Hussey has assisted with the facilitation of negotiations between the parties during this week. I acknowledge with gratitude his role in the matter.
19 The court was told that the nearby neighbours are largely supportive of the project, but Mr Besley of 34 Ladbury Road (whose property looks out on the 14th tee and fairway, and, in the middle distance, the 13th and 15th greens) submitted written objections on his behalf and on behalf of his near neighbours in nos. 24-32 (including Mr Robins of no.28, who had made an objection on 15 February on his own account). See Exhibit P6, tabs 1-9. Mr Besley also gave oral evidence on Monday 15 December.
20 The court had the benefit of a comprehensive site visit on Tuesday 16 December, including a visit to Mr Besley’s property.
Contentions
21 The flooding and drainage impacts are the threshold issue in this application due to the proximity of the site to the flood-liable Nepean River and the proposed change in alignment of the Peach Tree Creek, which traverses the site. The modification application also proposes the change in location and levels of several tees and greens by the incorporation of mounding and site grading, to achieve an improved environmental outcome.
22 Consequently, the following two elements of flooding were identified:
· Regional flooding arising from the Nepean River. There is a levee bank along part of the river bank in the vicinity of the site, which restricts certain flooding.
· Local flooding, which occurs as a result of the relatively low-lying land behind the levee bank, where the site is located.
Relevant planning controls
23 Under the provisions of the Penrith LEP No 43 (Exhibit P6, tab 10) any purpose incidental or subsidiary to “Drainage” is permissible with consent in Special Uses Drainage zone. Clause 18 provides that:
“A person shall not develop land to which this plan applies unless arrangements satisfactory to the council are made for the drainage of the land” .
24 Clause 19 (5) requires the Council to take into consideration :
“(5) The Council, in determining an application for development under subclause (3), shall take into consideration in relation to the construction or operation phase of the proposed development the following matters:
(a) any relevant floodplain management plan or policy of the Council on flood prone land;
(b) details of flooding relating to the subject lands;
(c) any social and economic impact of flooding on the development;
(d) the extent and nature of any impact of the proposed development on the floodplain, including the impact on -
(e) any matter likely to significantly change the predictability of, duration of, or warning time in regard to, floods;
(i) Shire of Hawkesbury;
(ii) water quality;
(iii) flood behaviour, in particular whether development is likely to substantially divert or detain floodwater or substantially reduce flood storage capacity within the catchment;
(iv) any native plant and wildlife communities;
(v) any wetlands still largely in a natural state;
(vi) any other flood liable development;
(f) any matter which may increase the risk of flood damage to regional infrastructure or commit the State Government or local government bodies to more expenditure in mitigation or relief measures;
(g) any availability of alternative flood free sites and reasonable alternative uses for the subject site;
(h) the potential for cumulative adverse impact;
(i) the need for buildings and works to be flood proofed.”
25 Clause 19 (6) provides:
“(6) The Council in determining an application for development under subclause (3) which will include the creation of a lake shall take into consideration in relation to both the construction and operation phases of the proposed development, in addition to the matters referred to in subclause (5) the following matters:
(a) the source of water needed to fill any lake (including the quality and quantity of water from that source);
(b) water reticulation systems from the Nepean River to any lake, from lake to lake and from any lake to the Nepean River;
(c) the water quality of any lake (including the aquatic ecosystem);
(d) water treatment facilities;
(e) water depth of any lake;
(f) flood control;
(g) storm water control and site drawings;
(h) the effect that development would have upon the quantity and quality of the existing groundwater, the level of the existing water table and groundwater movement;
(i) lake usage;
(j) noise control;
(k) lake wall and river bank erosion control, including stability and thickness of the lake liner;
(l) stability of the river bank;
(m) control of aquatic plants;
(n) mechanisms to monitor the water quality of the lakes having regard to their intended use;
(o) the effect upon the Hawkesbury and Nepean River system;
(p) lighting.
(7) Before granting consent to development under subclause (3) the Council shall consult with the Director of Environment and Planning.”
26 Clause 19A(3) relevantly provides:
“(3) The Council, in determining an application for consent to carry out development for the purpose of a golf course on land to which this clause applies, must have regard to the following matters;
(a) the effect that the development would have upon the amenity of adjacent residential properties,
(b) the adequacy of existing and proposed fencing and landscape screening adjacent to adjoining residential properties,
(c) design solutions proposed to minimise the possibility of golf balls straying into adjoining residential properties,
(d) the effect that the development would have upon aboriginal cultural heritage.
27 The Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (SREP 20) applies and requires the consent authority to take into account a number of strategies and controls covering water quality and quantity and riverine scenic quality.
28 Penrith Development Control Plan 2006 (Exhibit P6, tabs 12-16) applies to the site. It contains a number of development controls dealing with erosion and sediment control, landscaping, flood liable land and rural development.
Regional flooding
29 The parties agreed to Mr D McConnell being the single expert to assess the impacts of regional flooding impacts. He is an experienced civil engineer with a specialised background in coastal, maritime, river and hydraulic engineering.
30 Mr McConnell undertook flood modelling to make a comparison between the ‘base case’ representing the existing approval impacts for comparison with the proposed topography. He modified the Penrith Nepean RMA2 Flood Model to reflect the changes in topography. The proposed flood model was then run with the design 200yr average recurrence interval (ARI) flow hydrograph.
31 This modelling processes the flow hydrograph in a series of short steps calculating an evolving flood water surface with attendant velocities at each node point. The highest values of water level and velocity at each node throughout the hydrograph were exacted to create peak surfaces of water level and velocity. A surface representing peak flood depths was then created by subtracting the relevant ground levels from the peak water surface.
32 Accordingly, 2 dimensional surfaces of peak water level, peak flood depth and peak velocity were generated for the base case and the proposed. Changes or impacts resulting from the proposed modified topography were then ascertained by comparing matching surfaces between the 2 scenarios.
33 From this, Mr McConnell concluded that within the limits of accuracy of the RMA2 model, the results indicate that negligible changes to the flood behaviour surrounding the site could be expected as a result of the proposed modifications to the topography.
34 However, as Peach Tree Creek is in the lee of the natural levee created by the Nepean River along its banks, in certain storm events this levee forms a barrier between the site and river, causing regional floodwaters to initially back up along Peach Tree Creek, inundating much of the surrounding area. Once the levee overtops, a short while prior to the peak of the 200yr ARI design flood, a significant quantity of flow passes across the levee through the Peach Tree corridor.
35 Council raised no objections to this methodology or the associated conclusions. In these circumstances, the Court relies on Mr McConnell’s assessment that the proposed modifications to the site topography will have no material effect on regional flooding in the area.
Local flooding
36 The proposed modifications involve shifting the approved drainage corridor through the site, to better correspond with the existing Peach Tree creek alignment so as to achieve an improved ecological and environmental outcome. However this involves the removal of three ponds on the site and a further pond on the northern boundary, which extends onto neighbouring council land.
37 Concerns were initially raised that the proposed embankments were too steep and a likely hazard to the public. Also, that the proposed ponding and creek weirs were not satisfactorily designed to address stagnation, water quality, mosquitoes, connectivity of the stream system and overflow issues. Other concerns were raised about the practicality of using bore water or harvested stormwater during extreme dry periods.
38 Following the submission of further details, joint conferencing was undertaken by Mr C Ross – Council’s engineer and major projects manager and Mr R Ward – the applicants consulting engineering surveyor. They agreed that the proposed amended landform, including works undertaken will not have any detrimental impacts on lands outside the site.
39 However, they said that this should be confirmed by obtaining a satisfactory outcome from a 1 dimensional hydraulic analysis, so that any detrimental impacts could be readily corrected with relatively minor modifications to the creek. Some other concerns were expressed regarding the possible constriction effects of the abutments of the two footbridges over the creek, however the court was assured that this could be addressed by minor, localised regrading if necessary. Consequently, these experts agreed that conditions of consent could reasonably cover these matters and any minor amendments incorporated in the final detailed designs required by the Construction Certificate.
40 Another issue raised concerns on the extension of the road drainage pipe that previously discharged into the watercourse at the rear of No 40 Ladbury Avenue. Following clarification of this matter at the view, the court was informed that this issue could be satisfactorily addressed by conditions of consent requiring the piping to be extended to a suitable discharge point and such work to be in accordance with acceptable engineering standards.
41 On the basis of the agreement by these drainage engineers and surveyors, the court accepts that the local drainage issues arising from the proposed modifications can be reasonably covered by the agreed conditions of consent.
Ecological impacts
42 This issue was addressed by Ms K Duchatel (Council’s consultant ecologist) and Dr P Nichols (the applicant’s consulting ecologist). They initially raised some concerns about the design of the ponds, in terms of the need to obtain consent from the Department of Water and Energy, and the adequacy of the proposed landscaping and rehabilitation of the creek.
43 However, these experts agreed that the revision of the creek design to incorporate riffle structures, instead of the weirs, along the meandering creek alignment, would result in an acceptable environmental outcome. Insofar as they expressed some concerns about the status of the northern pond, the clarification that it is to be removed and rehabilitated in accordance with the overall landscaping plans was considered satisfactory.
44 As the requirements of the ecological experts have been incorporated into the agreed conditions, there is no substantive evidence to reject the proposal on this basis.
Public interest
45 As previously noted, a number of objections were lodged, together with other support for the application. In particular Mr Besley and some of his near neighbours are dissatisfied with the impact of the golf course fences on their outlook. This also applies to the neighbouring properties.
46 However, it is apparent from the view that this modification application does not propose any significant changes to the form of development or levels in the vicinity of this property. Therefore, the court does not consider it reasonable to revisit this matter that was determined in the original consent.
47 Notwithstanding this, the court notes the conditions of consent require the staged implementation of the landscaping plans. This should enable reasonable consultation between the adjacent property owners and the developer to implement acceptable landscaping adjacent to these and other neighbouring properties. Therefore, the court does not consider there was any compelling case made to upset the agreed consent orders.
Conclusion
48 In determining this s 96 application, the court has considered the proposed incremental changes from the approved development and is satisfied that it relates to the same development. Also that the application was notified and the merits of the various objections assessed.
49 The detailed conferencing by the respective experts on the identified issues has resulted in the agreement to appropriate conditions and the court is satisfied that these adequately address the relevant merit considerations and that the relevant planning controls are met to enable the court to determine the matter by making the consent orders.
50 The court makes the following orders by consent in matter 10319 of 2008:
1. The appeal under s 96 is upheld.
3. The exhibits may be returned except Exhibits A1, A4 and P3 which will remain in file 10319 of 2008; and E xhibits P10, P11 and P12 which will be returned to file 10143 of 2006.2. The application for modification of consent granted by the court on 24 May 2006 in proceedings no.10143 of 2006 is approved subject to conditions in Annexure “A”.
51 In consequence of the court’s agreement to dispose of the 2008 class 1 matter in that way, the parties have agreed upon, and the court now makes, the following orders, by consent, in the class 4 proceedings:
In these Orders:
“Council” refers to the Applicant in proceedings 41333 of 2007 and the Respondent in proceedings 10319 of 2008,
“Consent” means the development consent granted by this court on 24 May 2006 in proceedings 10143 of 2006 as modified by the s 96 application determined by this court by orders made this day.“Golfam” refers to the Respondents
Orders:
1. Golfam shall carry out the development and operation of the golf course in accordance with the terms of the Consent as modified.
2. Golfam be restrained from commencement of operation of the golf course until:
i. Golfam has complied with condition 15 of the Consent by provision of written certification in accordance with the condition that each of the 2 bridges are constructed and structurally adequate prior to the use of each bridge when completed; and has Department of Water & Energy approval as per condition 4 of the Consent;
ii. all ponds and dams are constructed in accordance with condition 32 and certified in accordance with condition 34 of the Consent, or alternatively temporarily fenced pending compliance with conditions 32 and 34;
iii. the raised area in the vicinity of the 15th green is fenced to prevent any member of the public from slipping or falling down the steep edge/slope;
iv. Golfam has given the applicant Council 2 working days notice of compliance with i to iii hereof;
v. the Council has acknowledged in writing that i to iv hereof has been complied with.
(The court notes: the Council will give the acknowledgement in v. within 2 working days of Golfam giving notice as in iv.)
3. The respondent Golfam shall pay the costs paid by the applicant to the Parties’ Single Expert Mr McConnell of Worley Parsons for his report of 20 November 2008 and work incidental thereto in the sum $4,400.
52 The remaining questions regarding the costs of the class 4 proceedings are adjourned to 3pm Thursday 18 December for further hearing and determination, unless agreement is reached between the parties in the meantime.
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