Golfam Pty Limited v Penrith City Council and Water Administration Ministerial Corporation
[2006] NSWLEC 283
•05/24/2006
Land and Environment Court
of New South Wales
CITATION: Golfam Pty Limited v Penrith City Council and Water Administration Ministerial Corporation [2006] NSWLEC 283 PARTIES: APPLICANT:
Golfam Pty Limited
FIRST RESPONDENT:
Penrith City Council
SECOND RESPONDENT:
Water Administration Ministerial CorporationFILE NUMBER(S): 10143 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Revegetation of creek system LEGISLATION CITED: Penrith Local Environmental Plan No 43, (PLEP)
Sydney Regional Environmental Plan No 20 – Hawkesbury – Nepean, (SREP20)
Rivers and Foreshores Improvement Act 1948, (RFI Act), Part 3A
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 24/05/2006 EX TEMPORE JUDGMENT DATE: 05/24/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr D G Briggs, solicitor
SOLICITORS:
D G Briggs and AssociatesFIRST RESPONDENT:
Mr L Docker, barrister with Mr M Bullivant, solicitor
Penrith City Council
SOLICITORS:
N/A
SECOND RESPONDENT:
Mr M Allas, solicitor Legal Services Branch Department of Natural Resources
SOLICITORS:
N/A
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
24 May 2006
10143 of 2006 - Golfam Pty Limited v Penrith City Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Penrith City Council (the council) of an integrated development application to construct a nine-hole golf course, since amended to eighteen holes, including landscaping on Part Lot 11, DP 710086; Part Lot 12, DP 710086; Part Lot 13, DP 710086; Part Lot 101, DP 774759, at the Penrith Panthers Rugby League Club, Mulgoa Road, Penrith.
2 I visited the land in company with the parties on the morning of the day of the hearing.
3 The consent orders prepared by the parties are endorsed, and approval granted subject to the council’s conditions and the General Terms of Approval as amended sought by the Department of Natural Resources.
The land
4 The land is situated on the eastern side of Mulgoa Road, north of Jamison Road, at Penrith and has an area of some 20.79 hectares. The land is irregular in plan and has vehicular access at a signalised intersection with Mulgoa Road. An intermittently flowing creek, known as Peach Tree Creek, running north south traverses the land and there is a transmission line within an easement on the land.
5 To the west the land is bounded by residential properties fronting Ladbury Avenue, Penrith. To the east is the Panthers Rugby League Club and a retirement village. To the south of the land is a golf driving range and putting.
Relevant planning controls
Penrith Local Environmental Plan No 43, (PLEP)
6 Under the provisions of the PLEP the land is zoned Special Uses (Golf Course) and the proposal is permissible with consent. The PLEP has been amended by LEP261, in respect of Part Lot 11, DP 710085; LEP160 and LEP261, and IDO93, as amended by LEPs 160 and 261 in respect of Part Lot 12, DP 710085; LEP43 as amended by LEPs 160 and 261, and IDO93, as amended by LEPs 160 and 261 in respect of Part Lot 13, DP 710085; LEP43 as amended by LEPs 160 and 261 in respect of Part Lot 101, DP 774759.
7 Under the PLEP ‘golf course’ is defined as:
- …areas adapted for the playing of golf and the earthworks and drainage related thereto and includes related facilities such as clubhouse, golf driving or practice range, refreshment rooms, pro shop, parking, maintenance depot and the like.
8 SREP20 applies to the land and aims to protect the environment of the Hawkesbury – Nepean River by ensuring that the impacts of future land uses are considered in the regional context.
The proposal and its history
9 Development application No 02/3390 was lodged with the respondent council on 20 December 2002 to construct an eighteen-hole golf course on the land.
10 The application was accompanied by:
· Statement of environmental effects prepared by B T Goldsmith Planning Services Pty Limited dated December 2002.
· Vegetation Management Plan - Assessment of Existing Habitat and Water Quality Functions (Australian Wetlands) 1999 prepared by Gunninah Environmental Consultants dated August 1999.
· Flood Investigation Report prepared by Lyall & Associates dated July 2003.
· Vegetation Management Plan - prepared by Gunninah Environmental Consultants dated October 1999.
· Vegetation Management Plan – Addendum – Major Drainage Works on Panthers’ Site, Penrith at Peach Tree Creek Penrith prepared by J Wyndham Prince Pty Limited dated 6 August 2003.
· Architectural plans prepared by J Wyndham Prince Pty Limited dated July 2005.
11 Some of these documents have been superseded. Those that are now relevant are:
· Exhibit A: ‘Vegetation Management Plan - Addendum – Major Drainage Works on Panthers’ Site, Penrith at Peach Tree Creek Penrith’ prepared by J Wyndham Prince Pty Limited, Document No 7191, dated 6 August 2003.
· Exhibit B: Architectural plans 24 sheets x A3 by J Wyndham Prince filed 24 February 2006;
· Exhibit 5: ‘Major Drainage Works on Peach Tree Creek at Panthers, Flood Investigation’ by Lyall & Macoun Consulting Engineers, Job No MA608, dated 17 May 1999; and
· Exhibit 6 ‘Peach Tree Creek Drainage Works and 18 Hole Golf Course at Panthers’ by J Wyndham Prince Pty Limited dated 30 March 2005 and addendum of minutes of meeting on 5 April 2004.
Notification
12 The application was notified to nearby owners and occupants from 14 January 2003 to 13 February 2003 and the council received three submissions and despite not raising objection to the proposal referred to various issues including flood mitigation.
The council’s decision
13 When the application was filed in Class 1 of the Court’s jurisdiction the council had not determined the matter.
The hearing
14 The appeal was filed on 22 February 2006.
15 At the hearing the court heard evidence on behalf of the first respondent from:
· Mr K Jameson, resident of No 40 Ladbury Avenue, Penrith;
· Mr C Ross, Design and Technical Advice Manager with Penrith City Council; and
· Mr W Stimpson, Senior Environmental Planner with Penrith City Council.
16 On behalf of the second respondent Mr G Brady, of the Department of Natural Resources gave evidence.
17 On behalf of the applicant evidence was given by:
· Mr M Pritchard, Manager, Golfam Pty Limited, applicant.
18 Mr W Stimpson, also prepared the statement of basic facts.
The issues
19 On 3 April 2006 the council filed a statement of issues.
- Planning issues:
- The Department of Infrastructure Planning and Natural Resources (DIPNR) General Terms of Agreement, (GTA's)
4. The council received DIPNRs GTA's on 27 March 2006. Council Design and Technical Advice Department has not yet assessed the consequences of these GTA's.
20 When the matter came to hearing Issues 1, 2 and 3 were no longer in dispute between the parties and consent orders were sought. The remaining key issue was the revegetation of creek system.
General terms of approval under the Rivers and Foreshores Improvement Act 1948, (RFI Act)
21 By notice dated 19 May 2006, the Department of Natural Resources filed the general terms of approval under the RFI Act. The proposal is considered to require a Part 3A permit.
22 The representatives of the Water Administration Ministerial Corporation addressed the implications of imposing each of the four options contained in Condition 36 of the GTAs. The four options ranged from full revegetation of Peach Tree Creek within the riparian zone to accepting the revegetation as shown in the development application drawings. After further discussion these options were reduced the one being Option 4 that referred to the applicant’s plans.
23 The parties agreed to continue negotiations to increase vegetation along Peach Tree Creek. The objective of the continued negotiations was to refine the Vegetation Management Plan in an attempt to reduce the nutriment flow into the creek system and thence into the Nepean River, provide habitat for a range of animal and plant species, and to maintain hydraulic efficiency of the watercourse during major flood events.
The evidence and findings
Condition 36 of the General Terms of Agreement, (GTA)
24 The evidence mainly went to resolving which of the four options set out in the original Condition 36 of the GTAs should be pursued. The original Condition 36 of the GTAs stated, “…site rehabilitation must:
a) protect any remnant local native riparian vegetation at the Site wherever it is reasonably possible to do so, and,
b) restore any riparian zones that are disturbed or otherwise affected by the development to a state that is reasonably representative of the natural ecotone of the protected waters and their environment in accordance with the remaining part of this condition:
- The riparian zones so restored are to consist of a diverse range of native plant species local to the area and communities that emulate the original natural situation. The location and nature of riparian zone plantings is to be determined in conjunction with the requirements for mitigating the impacts of flooding, both upstream and downstream of the Site. The applicant may adopt any one of the following options in respect of planting densities:
Option 1. Fully structured vegetation on both sides of the low-flow channel for a minimum horizontal distance of 20m measured landward from the top of the bank of the low-flow channel, and for the remainder of the riparian zones, vegetation in accordance with the DA.
Option 2. Fully structured vegetation for a minimum horizontal width of 10m on both sides of the low-flow channel anywhere within 50m of the top of the bank of the low flow channel, and for the remainder of the riparian zone, vegetation in accordance with the DA.
Option 3. Fully structured vegetation for a horizontal distance of between 20m and 40m on one side of the low flow channel only, and for the remainder of the riparian zone, vegetation in accordance with the DA.
Option 4. Vegetation in accordance with the DA.
(NOTE: DNR will consider reduction in canopy species for small portions of the fully structured component of the riparian zones to facilitate fairway functions associated with the golf course, provided groundcover and a low shrub layer are maintained.)
For the purposes of these conditions:
· “fully structured” means at least 1 tree or shrub (in approximately equal numbers) alternately planted at 1 plant per square metre, and in addition, groundcover plants at 4 plants per square metre, unless otherwise specified in the VMP.
· “vegetation in accordance with the DA” means vegetation as indicated on Plan No. 7191/E23 Version A dated 8/8/03 “Peachtree Creek Stream Rehabilitation Works – Typical Planting Regime” by J. Wyndham Prince Pty. Ltd.
25 Mr Ross was concerned to ensure that the location and nature of riparian zone plantings should be determined in conjunction with the requirements for mitigating the impacts of flooding, both upstream and downstream of the land.
26 Mr Brady, urged the Court to consider the benefits that would flow to the natural environment were the Peach Tree Creek system revegetated. He sought to ensure that nutriments from the proposed golf course would not flow into the creek system in times of peak flow and that the area of native vegetation be increased.
27 The parties agreed to endorse the Option 4 regime and that under the amended Condition 36, “…site rehabilitation must:
a) protect any remnant local native riparian vegetation at the site wherever it is reasonably possible to do so, and,
b) revegetate in accordance with the DA. For the purposes of these conditions “revegetate in accordance with the DA” involves planting vegetation as indicated on Plan No 7191 and the Addendum dated 6 August 2003, ‘Vegetation Management Plan Addendum Major Drainage Works on Panthers Site, Penrith at Peachtree Creek, Penrith’ by J. Wyndham Prince Pty Limited.
28 During the hearing other conditions contained in the GTAs were amended and deleted to reflect this outcome of amending Condition 36.
Resident concerns
29 Mr Jameson, told the Court that he was concerned for the stormwater drain extending to the east from the rear of his property. He asked the applicant to ensure that the effectiveness of this drain is maintained during construction and maintenance of the golf course. He said this drain is a ‘life line’ for the residents living in Ladbury Avenue in time of heavy rain.
30 The applicant’s representatives explained that it is intended to ensure adequate flows are maintained in the drainage system and along Peach Tree Creek in times of peak flows.
31 Mr Bowers, Group General Counsel of Penrith Rugby League Club Limited agreed to maintain communication at all times with the residents of the area to ensure that drainage and other matters are attended to promptly.
Other matters
32 The council has sought to impose a condition requiring the applicant to provide an additional forty-eight (48) car parking spaces for patrons of the golf course. This was not in issue in the appeal, and the applicant and Panthers are prepared to provide these spaces and sufficient land area is available for this purpose nearby.
33 For the above reasons, the appeal is upheld by consent.
Conditions
34 The conditions are those in Exhibit D with the applicant’s amendments with the GTAs provided by the Department of Natural Resources attached.
Consent orders
35 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Integrated development application No 02/3390 lodged with the respondent council on 20 December 2002 to construct an eighteen-hole golf course including landscaping on Part Lot 11, DP 710086; Part Lot 12, DP 710086; Part Lot 13, DP 710086; Part Lot 101, DP 774759, at the Penrith Panthers Rugby League Club, Mulgoa Road, Penrith, is approved subject to Conditions 1 to 25 in Annexure A and in accordance with the General Terms of Approval, as amended, of the Department of Natural Resources.
3. The exhibits are retained.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are 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 atS J Watts
Commissioner of the Court
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