Hautle v Tenterfield Shire Council

[2012] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hautle and anor v Tenterfield Shire Council [2012] NSWLEC 1079

Hearing dates:

23,24 January 2012, written submissions 20 February 2012, 2 March 2012 and 9 March 2012

Decision date:

02 April 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is dismissed.

2. The application to modify the approval granted for a camping ground at Lot 3, DP 751049 known as Rover Park and located off the Bruxner Highway, Tenterfield is refused.

3. The exhibits are returned with the exception of exhibit B.

Catchwords:

MODIFICATION: modify approval granted for a camping ground by additional facilities of flying fox, water slide, moto-cross tracks and four-wheel-drive tracks, skirmish course and shower block - inadequate information to properly consider proposal including treatment of the intersection with the Bruxner Highway, impacts on the flora and fauna, soil stability, bushfire threat and noise impacts - inconsistency with zone objectives.

Legislation Cited:

Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Planning and Assessment Act 1979
Evidence Act 1995
State Environmental Planning Policy No 44
State Environmental Planning Policy No 55
Tenterfield Local Environmental Plan 1996
Threatened Species Conservation Act 1995
Uniform Civil Procedure Rules

Cases Cited:

Commonwealth Development Bank of Australia v Cassegrain [2002] NSWSC 980

Category:

Principal judgment

Parties:

Hans Hautle and Heidi Hautle (Applicants)

Tenterfield Shire Council (Respondent)

Representation:

Counsel
Mr J Dupree, Barrister (Applicants)

Mr D Loether, Solicitor (Respondent)
Solicitors
Turnbull & Company Solicitors (Applicants)

Bartier Perry (Respondent)

File Number(s):

10528 of 2011

Judgment

1. ACTING SENIOR COMMISSIONER: This appeal relates to the refusal by Tenterfield Shire Council (the council) of an application to modify the approval granted by the council on 21 March 2002 for Development Application No. 2001/055 (the original approval) for a "Camping Ground" at Lot 3, DP 751049 known as Rover Park. Lot 3 has an area of 709.9 ha although the area for the camping ground is around 4 ha.

1. The modification application (the application) involves the following additional facilities:

• a 160 m single person flying fox,
• a 77.5 m long fixed water slide to an existing dam,
• moto-cross tracks and four-wheel-drive tracks with beginners, intermediate and advanced tracks,
• a 2500 sq m skirmish course with a 24 m long shipping container for equipment storage, and
• a 10.2 m x 2.7 m shower block with 22,500 litre grey water tank.

1. The flying fox, water slide, moto-cross tracks, four-wheel-drive tracks and shower block have been constructed.

1. The applicant was granted leave to amend the application (the amended application) during the hearing to reduce the extent of the moto-cross tracks and four-wheel-drive tracks. The application, as shown in the applicants Operational Management Plan, provided for the use of the remaining part of Lot 3 for motorbikes and the use of the adjoining Lot 2 for motorbikes and four-wheel drive vehicles. Lot 2 has an area of 867.2 ha and is owned by Makugal Pty Ltd. Mr Dupree, the applicant's barrister, submitted that while owners consent for Lot 2 had not been initially obtained, this consent was now available however was not required because of the amendment to the application that now does not include the use of Lot 2. The extent of the moto-cross tracks in the amended application is significantly reduced but extends beyond the area designated for the camping ground on the original approval on Lot 3 but not significantly (see Exhibit 6). The other facilities in the modification application also shown on Exhibit 6.

The contentions

1. The contentions raised by the council relate principally to the inadequate documentation provided by the applicant and the consequent inability for the council to properly consider the application. The areas of concern raised by the council relate to:

1. the treatment of the intersection of the access to the site with the Bruxner Highway,

2. the contents of the Operational Plan of Management,

3. impacts on flora and fauna,

4. soil stability,

5. bushfire threat, and

6. noise impacts.

7. inconsistency with zone objectives for the 1(a) zone.

1. The council also initially raised the contention that the application is "not substantially the same development as the development for which consent was originally granted". This contention was however not pressed by the council as the applicant agreed to a condition that restricted the use of the facilities, proposed in the application, to those guests of the camping ground and not by members of the public who are not making use of the camping ground.

The evidence

The council

1. The council provided expert evidence from Ms Tamai Davidson, a town planner, and Ms Michelle McKemey, an ecologist. The council also relied on correspondence from the Roads and Maritime Services (RMS) on 19 December 2011, 11 January 2012 and 8 February 2012 and its predecessor, the Roads and Traffic Authority (RTA) on 26 August 2010.

1. During the hearing, Mr Dupree, the applicant's barrister, questioned whether the evidence of Ms Davidson and Ms McKemey was impartial and objective and specifically whether their evidence satisfied the requirements for an expert witness, in that their paramount duty is to the Court and not to the council (Uniform Civil Procedure Rules (the Rules) r 31.23 and Sch 7 cl 2(2)). While Mr Dupree forensically reviewed their pre-trial instructions and was critical of the lack of knowledge of the original development application and supporting documentation, I have little trouble in accepting that their evidence properly addressed their obligations as expert witnesses. I do not accept that Mr Dupree raised by any matter that would lead me to question their impartiality and objectiveness, particularly in relation to their instructions and documentation associated with the original approval. Ms Davidson and Ms McKemey, based on their curriculum vitaes, are appropriately qualified and experienced in their respective fields. In preparing their evidence, they must form their own opinions based on their qualifications and experience, and importantly, their observations, at the time of preparing their evidence, if they are to fulfil their obligations as experts under the Rules and the Expert Witness Code of Conduct (the Code). I am more than satisfied that they have done this in a professional and proper manner.

The applicant

1. The applicant sought to rely on a document titled "Modification to DA Report" (the DA Report) by Mr Malcolm Whitton, Managing Director of Whitton Engineering. This document contained specific reports on bushfire, traffic and intersection design and on site waste management. Comments were also made, under the heads of consideration under s 79C(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) on State Environmental Planning Policy No 44 - Koala Habitat Protection (SEPP 44), State Environmental Planning Policy No 55 -Remediation of Land (SEPP 55), Tenterfield Local Environmental Plan 1996, flora and fauna including ss 5A and 5C of the EPA Act, erosion and sedimentation control, bushfire, soil/geotechnical, neighbours and adjoining land uses, noise and air, traffic and waste. The DA Report did not attach Mr Whittons curriculum vitae or acknowledge the Code or agree to be bound by its requirements.

1. The applicant also sought to rely on a document titled "Operational Management Plan" (the Management Plan). The Management Plan was unsigned however, as I understand, was prepared by Mr Whitton.

1. The DA Report formed part of the council's bundle of documents and was tendered on the first day the hearing as "opinion evidence" and not expert evidence. Mr Dupree accepted that the DA Report was not expert evidence.

1. However, on the second day of the hearing and after cross-examination of the council's expert witnesses and council's draft conditions of consent, Mr Dupree sought leave to:

1. allow Mr Whitton time to address the Code by providing the necessary declaration, or

2. as a second alternative if the first alternative was not acceptable to the Court, adjourn the proceedings to allow Mr Whitton to prepare expert evidence that addresses the Code.

1. Leave was not granted for additional time to remedy the omission of the acknowledgment of the Code. While expert evidence is not automatically rendered inadmissible because the expert has overlooked the acknowledgement of the Code, I accept the submission of Mr Loether that, in this case, the failure of the DA Report to acknowledge the Code cannot be cured and the DA Report is not admissible as expert evidence (Commonwealth Development Bank of Australia v Cassegrain [2002] NSWSC 980).

1. If I am incorrect in this finding then, I am still not satisfied that the DA Report can reasonably be regarded as expert evidence for the purposes of traffic planning, impacts on flora and fauna, bushfire threat, and noise impacts based on the qualifications and experience of Mr Whitton. For an expert's evidence to be submitted into evidence on an issue, the expert must have specialised knowledge that they are able to demonstrate to the Court is based on the person's training, study or experience, and the evidence must be wholly or substantially based on that specialised knowledge (s 79, Evidence Act 1995). While Mr Whitton is an experienced and qualified civil engineer, I do not accept that his experience and qualifications extend to traffic planning, impacts on flora and fauna, bushfire threat, and noise impacts. When given the opportunity to expand on his curriculum vitae in the witness box (see par 17), Mr Whitton provided no further evidence to support a position that he has specialist knowledge or experience in traffic planning, impacts on flora and fauna, bushfire threat, and noise impacts. Consequently, the DA Report cannot be considered as expert evidence for those matters.

1. Even though the Evidence Act 1995 does not strictly apply in Class 1 matters, and there may be instances where this may be appropriate, I do not accept that it is appropriate to put aside the clear and sensible requirement for expert evidence in merit matters that relate to specialist areas of knowledge.

1. On the second alternative, an adjournment was not granted, as it would not provide for the "just, quick and cheap" disposal of the proceedings. The applicant has been on notice of the council's contentions since at least 25 September 2011 when the council's amended contentions were filed. These contentions remained unchanged at the hearing, some 4 months later. In my view, more than sufficient time was available for the applicant to determine the evidence it required to address the council's contentions. The decision of the applicant to provide no expert evidence is not a reason to allow an adjournment during the hearing, in these circumstances.

1. Mr Whitton was however granted leave to address his "opinion evidence" on the treatment of the intersection of the access to the site with the Bruxner Highway in response to the condition imposed by the council. As part of his opinion evidence, Mr Whitton's curriculum vitae was tendered.

The access to the site from the Bruxner Highway

1. The council relied on documentation from the RMS and the RTA to support their position that insufficient documentation has been provided to determine whether the intersection to the camping ground from the intersection of Rover Park Road and the Bruxner Highway should be upgraded for the proposed modification to the approved camping ground.

1. The RTA and the RMS maintained a consistent approach to the application. The RTA letter, dated 26 August 2011, states:

...Unfortunately there is insufficient information to determine traffic implications that these changes will have to the site. To better understand the implications for the safety and efficiency of the Bruxner Highway, the Roads and Traffic Authority (RTA) requests a traffic study be undertaken.

It is anticipated any traffic study will concentrate on the safety of access to the site. The study should include existing Bruxner Highway traffic volumes, site traffic generation, distribution of traffic movements, an assessment of sight distances at the access. Recommendations for any improvements that might be necessary for traffic efficiency and safety should also be part of the study.

1. By letter dated 19 December 2011, the RMS identified deficiencies in the documentation provided by the applicant in that firstly, no traffic surveys have been undertaken on the Bruxner Highway and secondly, the monthly visitation averages for the site did not identify the actual peak traffic movements at the access point.

1. The RMS, by letter dated 11 January 2012 provides further correspondence and reiterates its previous comments. The correspondence relevantly states:

In the absence of a comprehensive Traffic Study that addresses those matters raised in the above-mentioned letters, RMS is unable to undertake an effective assessment of the potential impacts on the state road and a determination of the suitability of the treatment proposed by the proponent for the intersection of Rover Park Road and the Bruxner Highway. RMS maintains that a traffic study must identify the existing traffic conditions and that assessment of a suitable intersection treatment must be undertaken prior to any approval being granted.

Notwithstanding this, should the court could move to approve the development in the absence of the required information, then RMS would request that the minimum standard treatment for the given class of road be adopted in accordance with the RMS Network Planning Targets.

For this road, the target minimum treatment would be an AUSTROADS CHR treatment for right turns and an AUSTROADS BAL treatment to accommodate left turns. This should be provided prior to commencement of use.

1. The most recent correspondence from the RMS (8 February 2012), and in response to the evidence given by Mr Whitton on the amended application, at the hearing, reiterates their previous comments and states:

Broadly, the proper assessment of any risk presented by this development proposal is a function of the amount of traffic using the main road, the speed these vehicles are travelling, the quantity of turning traffic including their arrival rates, and the available sight distances at the intersection for traffic turning out and for those approaching the junction.

RMS has clearly and consistently stated that it did not have sufficient reliable information to assess the potential impact of the proposed development. In the absence of this information, RMS has no option but to recommend the adoption of a condition that reflects the base Network Target treatment of this type of road, an Austroads CHR/BAL, in order to provide for safe turning movements.

As previously advised, a BAR/BAL may be appropriate in this instance, however RMS, at this stage, is not in a position to make this determination due to the adequacy of the information provided....

1. On the question of whether adequate information has been provided to allow consideration of the appropriate intersection design, I have little trouble in concluding that the council's position must be adopted. The Bruxner Highway is a road under the control of the RMS and quite correctly, the RMS has a legitimate interest in maintaining that any access to the Bruxner Highway is done in a safe and efficient manner.

1. The RMS, in its multiple correspondence, has clearly identified the matters it needs to consider to ensure that any access to the Bruxner Highway is safe and efficient. It is a fundamental requirement in determining the appropriate form of intersection treatment that the existing traffic levels along the Bruxner Highway are known and that the likely traffic to be generated by the proposed development is also known. In the absence of this information, the RMS have helpfully provided an intersection design that would most likely be worst-case scenario in terms of traffic movements along the Bruxner Highway and traffic generated by the proposed development. It may well be that their preferred intersection design (BAR/BAL) is not necessarily appropriate for the proposed development but in the absence of the identified information, the response from the RMS is understandable. In any event, I note that the RMS required intersection design was not acceptable to the applicant. The most appropriate course of action is clearly to provide the information sought on a number of occasions by the RMS, to allow an appropriate intersection design to be determined.

1. Even if Mr Whitton's evidence was accepted by the Court as expert evidence, I do not accept that it supports the lesser standard of design suggested by Mr Whitton. His reliance on 2004 AADT figures for the Bruxner Highway and the interpolation of these figures to 2012 is at best unreliable and no substitute for up-to-date traffic counts on the Bruxner Highway near the site. Similarly, none of the documentation provided by the applicant provided any reliable information on the likely traffic generation from the site, even before the application was amended during the hearing. For example, the On-site Waste Water Management Report identifies approximately 700 people were on the site in October 2010. This report also identifies the maximum toilet capacity of 770 persons and that the maximum capacity of the shower block is 1145 persons. The report also refers to "one-off" events. I agree with the comments of the RMS that the potential traffic generation from the site has not been properly identified. In the absence of this information, any comment made by Mr Whitton in reference to Guide to Traffic Engineering Practice - Part 5: Intersections at Grade, Austroads 2005 must be given no weight.

1. I accept that Mr Whitton could likely prepare plans for the construction of an intersection for the Bruxner Highway and Rover Park Road, however the question to be answered, in this case, is not the physical construction of the intersection but what is the appropriate intersection design. As the fundamental parameters required to determine the appropriate intersection design have not been provided, and the intersection design proposed by the RMS, is not acceptable to the applicant, then the only reasonable conclusion that can be drawn by the Court is that the applicant has not provided sufficient evidence to support their position that a lesser standard of design for the intersection than that required by the RMS, can be justified.

1. I am satisfied that the information required to determine the appropriate form of intersection is a critical and fundamental part of the modification application and that the absence of this information alone, warrants the refusal of the application.

1. For completeness, I will briefly deal with the other outstanding issues.

The Operational Plan of Management

1. Ms Davidson, at the time of writing her expert report, noted that no Plan of Management had been provided. A Plan of Management was seen by Mr Davidson as being critical in terms of providing the details for the operational level of the camping ground. Mr Davidson addressed the Operational Plan of Management provided by the applicant at the hearing (Exhibit A) however she considered it unacceptable in its current form. While addressing a range of internal matters, such as Occupational Health and Safety issues for staff, it was deficient in other important matters such as, identifying maximum number of patrons, disciplinary procedures, emergency evacuation procedures, public safety procedures for the facilities and other management requirements.

1. I agree with the comments of Ms Davidson on the Operational Plan of Management. The document contains matters that are not necessarily appropriate for a Plan of Management, where its purpose should be to guide the operation of the camping ground. Matters such as risk assessment for the manual handling of goods by staff or working in confined spaces are necessary, but not within the Operational Plan of Management. The Operational Plan of Management also relates to the application and not the amended application, so there are references and plans in the document to areas that are no longer applicable.

1. If the in the adequacy of the Operational Plan of Management was the only issue in dispute then I would have allowed additional time for the document to be amended.

Impacts on the flora and fauna

1. Ms McKemey produced her written evidence on the application and not the amended application. She stated that there is insufficient information to enable any meaningful assessment of the likely impact of the proposed development and in the absence of that information, the subject application should be refused.

1. Ms McKemey undertook a desktop audit and field analysis to assess the potential impact of the application on threatened species and ecological communities listed under the Threatened Species Conservation Act 1995 and Environment Protection and Biodiversity Conservation Act 1999. The likelihood of a koala habitat, as defined in SEPP 44, was also assessed. Based on these considerations, Ms McKemey concluded that:

• a threatened species assessment was required, including a species impact statement for any threatened species,
• a koala habitat assessment was required, and a Koala Plan of Management, if a core koala habitat is detected, and
• an Environmental Management Plan is required to recognize sites landscape Environmental, threatened species and four and fauna values.

1. When Ms McKemey was cross-examined on the amended application, she accepted that the reduced area of the amended application reduced her concerns however a number of matters still required further consideration. Ms McKemey accepted that her previous concerns relating to the Forest red gum and the Grey gum-grey ironbark mahogany complex forest were no longer relevant given the reduced area on the amended application however potential concerns still existed with the Spotted gum complex forest and New England stringybark forest. Similar concerns were expressed over the impact on koala habitat because of its close proximity to the area of the proposed development.

1. Given the late amendment of the application and the limited time for Ms McKemey to address the amended application, I am satisfied that the concerns expressed by Ms McKemey are valid and while these concerns may ultimately be addressed by further research, it would not be appropriate for the Court to consider any approval without the additional research required by Ms McKemey.

1. The potential impact on flora and fauna is a statutory requirement and in the absence of the information to suggest that there are no likely impacts or that any impacts can be properly managed, I am satisfied that the potential impact on flora and fauna would warrant the refusal of the applicant.

Noise impacts

1. Even though the site is relatively isolated, there is the potential for noise impacts from the use of motorbikes. I note this was raised by an adjoining resident and while attempts were made during the site inspection to determine the location and source of the noise, I did not understand that this matter was ultimately resolved.

1. Without a proper acoustical assessment the potential would remain for ongoing noise disturbance. While it may not ultimately be a reason to refuse the application, limitations on operating times, locations, appropriate noise goals and acoustic limits on motorbikes can only be achieved through a proper acoustical assessment of the proposed noise generating facilities within the site.

1. I am satisfied that the information required to determine the appropriate noise levels for the activities on the site has not been provided and that the absence of this information would warrant the refusal of the application.

Bushfire threat

1. Given that the amendment to the application occurred during the hearing, no further bushfire threat assessment was provided. While the area for the proposed development has been reduced, the potential impact of bushfire must also be reassessed, notwithstanding the likely lesser impact.

Soil stability

1. Soil stability and potential erosion is a relevant matter to be considered given the proposed activities, however I am satisfied that this matter could reasonably be dealt with by way of conditions of consent.

Zone objectives

1. Ms Davidson states that the proposal has the potential to result in unacceptable amenity impacts and is incompatible with the objectives of the 1(a) zone largely because of the extensive motocross tracks and four-wheel-drive tracks in the original application.

1. As there are a number reasons why the application should be refused, it is not necessary to deal with the issue of incompatibility with the zone objectives, particularly as the amended application significantly reduces the extent of the motocross and four-wheel-drive tracks relied upon by Ms Davidson.

Orders

1. The Orders of the Court are:

1. The appeal is dismissed.

2. The application to modify the approval granted for a camping ground at Lot 3, DP 751049 known as Rover Park and located off the Bruxner Highway, Tenterfield is refused.

3. The exhibits are returned with the exception of exhibit B.

G T Brown

Acting Senior Commissioner

Decision last updated: 05 April 2012