Integrated Site Design Pty Ltd v Baulkham Hills S C and Dennis Gelle Pty Ltd v Baulkham Hills S C - [2004] NSWLEC 346

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Integrated Site Design Pty Ltd v Baulkham Hills S C & Dennis Gelle Pty Ltd v Baulkham Hills S C [2004] NSWLEC 346

PARTIES:
APPLICANTS
Integrated Site Design Pty Ltd and Dennis Gelle Pty Ltd
RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S): 11290 & 11291 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- riverside tourist facility and caravan park - flood prone area - erection of garages in flood zone - installation of pontoons and gangways on the foreshore - erection of a house in the flood zone.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Baulkham Hills Development Control Plan No.1
Sydney Regional Environmental Plan No. 20
Baulkham Hills Local Environmental Plan 1991

CASES CITED:

DATES OF HEARING: 11/05/2004-14/05/2004

DATE OF JUDGMENT: 07/09/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
SOLICITORS
Robilliard, Plowoman Herat
RESPONDNET
Mr A Gallasso, barrister
SOLICITORS
Phillips Fox

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11290 of 2003 and

11291 of 2003

Hoffman C

9 July 2004

Integrated Site Design Pty Ltd
Dennis Gelle Pty Ltd
Applicants

v

Baulkham Hills Shire Council

Judgment

Introduction

1 . This was two class one appeals heard at the same time. Appeal No. 11290 of 2003 is in regard to the refusal of an application to erect the house on Lot 1 DP 512490 River Road and is between Dennis Gelle Pty Ltd and Baulkham Hills Shire Council. The house directly adjoins the tourist facility called the Ko Veda Waterski Park on the banks of the Hawkesbury river at Wiseman’s Ferry. Part of the house site is on the ski park land and there is a proposed subdivision to enlarge the existing lot 1 by taking part of the tourist facility land, but the subdivision is not before the Court.

2 . Appeal No. 11291 of 2003 is an appeal over the refusal of a s 96 application to amend an existing consent granted by the council to allow 47 cabins to be erected on the Ko Veda Ski Park on Lot D DP 384298, Lot 1 DP 119919, Lot 1 DP 783552 and Lot 5 DP 729341 River Road. This appeal is between Integrated Site Design Pty Ltd and Baulkham Hills Shire Council. The s 96 application was to allow 5 pontoons along the waterfront to give easier access to the water and to allow each cabin to turn its approved car parking space into a garage. The existing consent envisaged that carports may be erected with further consent from the council over each car space.

The Issues

3 . In Appeal No. 11290 of 2003, regarding the house, the Respondent contends that the following matters are in issue:
Local Environmental Plan
1 Whether the proposed development is consistent with objectives (b) and (d) of the Rural 1 (b) Zone in Baulkham Hills Local Environmental Plan 1991 (LEP).

to ensure that the development is carried out in a manner that minimises risks from natural hazards and does not unreasonably increase demand for public services and public facilities".

"to protect and enhance those areas of particular scenic and of the environmental value."

(c) The proposed development is not consistent with the said objectives.

Development Control Plan No. 1

Baulkham Hills Development Control Plan No.1

"to ensure that development in rural areas has regard to the agricultural and environmental quality of the land

"to accommodate development which is compatible with the rural environment, does not unreasonably increase the demand for services and minimises risks from natural hazards."

(c) The proposed development is not consistent with the said objectives.

3 Whether the proposed development complies with Clauses 3.6(1) and 3.7(2) of the DCP

"The minimum building setback on land having a frontage to a classified road is 30 metres within a rural zone… These roads comprise:….. River Road".

"The minimum building setback to the Hawkesbury River is 30 metres".

Clause 3.6 and 3.7 of the DCP.

"To protect the scenic and environmental amenity

rural land adjacent to Classified and other Roads."

"To protect the scenic quality

the Hawkesbury River and other waterways and creeks in the Shire."

SEPP No. 20 - Hawkesbury Nepean River

Whether the proposed development is consistent with clause 6(7) of

Sydney

Regional Environmental Plan No. 20 -Hawkesbury Nepean River

(SREP No. 20

).

Particulars:

Clause 6(7) of SREP No. 20. "Policy" provides: "The scenic quality of the

riverine corridor must be protected".

Clause 6(7) of SREP No. 20 Strategy (c) Provides:

"Consider the siting. set back. orientation. size. bulk and scale of and the uses of unobtrusive, non-reflective material on any proposed building or work, the need to retain existing vegetation, especially along riverbanks, slopes visible from the river and its banks and along the skyline, and the need to carry out new planting of trees and shrubs, particularly local indigenous plants".

( c) The Proposed development is not consistent with the said clause.

Visual Impact

6 Whether the proposed will have an unacceptable visual impact when seen from

Flooding

7 [deleted]

Sewage

8 Whether the proposed development is consistent with objective 1 of clause 5.4 of Baulkham Hills Development Control No.2 -On-Site Sewage Management Systems (DCP No.2).

Particulars:

Objective 1 of clause 5.4 of DCP 2 provides:

"Protection

of

surface waters -OSMS should be selected, sited, designed, constructed, operated and maintained so that surface waters are not contaminated".

(b) Clause 5.4 of DCP No.2 provides the following as a requirement: "Effluent disposal areas shall be located no less than 100 metres from a watercourse and 40 metres from a dam or other water body if within its catchment.

(c) The proposed effluent disposal area is less than 100 metres from the Hawkesbury River.

(d) The proposed effluent disposal area is less than 40 metres from the dam on the adjoining property and the proposed effluent disposal area is within the catchments of that dam.

Allotment

Public interest

10 Whether the proposed development is in the public interest and should be approved in the circumstances of the case.
4. The respondent’s evidence was heard from:

Mr J Garland – building surveyor for the council
Dr R Lamb – biologist and landscape visual impact specialist
Mr M Colburt – senior environmental health officer and on-site sewage disposal assessor for the council. He was not required for cross-examination.

Mr M Gearey – civil engineer and flood plain management expert
Mr S Smith – civil engineer and waste water management expert
Mr R Bardsley-Smith – town planner

6 . A joint statement was tendered in Exhibit O signed by Mr Bardsley –Smith, Mr Garland and Mr Smith.

7 . In the appeal relating to the house the applicant tendered house plans in Exhibit A and landscape plans annotated in Exhibit B. Although the respondent still sought refusal of the house, both parties pressed the draft conditions in Exhibit 13 with conditions 6 and 7 deleted, and Exhibit O conditions 4 and 1 substituted with condition 1 of Exhibit O being made a deferred commencement condition.

8 . The respondent pressed Exhibit O conditions 2, 3, 5 and 6 and the applicant felt that if the Court wanted the conditions they would be accepted, but did not believe they were warranted.

9 . The issues in Appeal 11291 of 2003, The tourist facility and caravan park, were:
Substantially the same development

Local Environmental Plan

Baulkham

Hills Local Environmental Plan 1991

"to ensure that the development is carried out in

manner that minimises risks from natural hazards and does not unreasonably increase demand for public services and public facilities”.

"to protect

enhance those

of particular scenic and environmental value."

Visual impact: Section 79 C of the Environmental Planning and Assessment Act, 1979 and Sydney Regional Environment Plan No. 20 Hawkesbury-Nepean River (No.2 of 1997) (REP 20)

3 Whether the proposed pontoons and ramps will have an unacceptable visual impact when seen from the Hawkesbury River.

Flooding

respect of the development of

which, in the opinion of the

may be subject to flooding, the

must aim

to reduce the impact the flooding on owners and occupiers to reduce private and public losses resulting from flooding; and

(b) to reduce the impact of flood liability on owners and occupiers."

Impact on riparian vegetation: Section 79C of the Environmental Planning and Assessment Act, 1979

Public interest
6 Whether the proposed development as sought to be modified is in the public interest and should be approved in the circumstances of the case.
10. The respondent’s evidence was heard from:

Mr M Bewsher – civil engineer – expert on flooding and drainage
Dr D Robertson – ecologist
Ms K McKenzie – town planner for the council

Mr Bewsher was not required for cross-examination.

Dr R Lamb – biologist and landscape visual impact specialist
Mr M Gearey – civil engineer and flood plain management expert
Mr R Bardsley-Smith – town planner
Mr G Sainty – wetland scientist.

The evidence on Appeal No. 11291 of 2003

12 . The environmental impact statement for the designated and integrated development for the 47 cabins and car spaces on the Ko Veda tourist facility was also tendered with the councils consent No. DA 2430/03/HE dated 1 Aug 2003. References were also made to an appeal hearing for 3 prior applications to do with the Ko Veda Ski Park heard simultaneously by former Chief Justice Pearlman and determined on the 25 Oct 2001.

13 . One of the applications refused by the Judge was for 50 temporary Dwellings or as now called cabins on Lot D DP 384298 River Road in the approximate location where a fresh application was subsequently approved by the council.

14 . The council’s conditions required that the cabins have only car spaces attached, not garages, but did give the option that carports may be approved. According to the evidence this related to the fact that flooding from the river took place regularly. About every 2 years some of the carports (if approved) would flood, about every 5 years all of the carports (if approved) would flood to about 1.4 m depth, and in 1:100 year flood the carports and the cabins would be completely submerged.

15 . The council’s conditions of consent required the cabins be elevated on stilts to avoid the floods up to the five years frequency, and to have a structure able to withstand the higher floods and not be swept away. Internal fitout was apparently using materials that would minimise damage. Windows were to be left open during the flood.

16 . The carports, if approved, would have floors at ground level and would flood on a 2 year frequency. Being only carports the evidence was it would minimise what could be stored in them to boats on trailers and cars that could be taken away easily.

17 . There was about 4 days prior knowledge by authorities of floods coming down the river that would cause inundation. In oral evidence it was said that authorities would notify owners along the river a minimum of 2 days before a flood occurred so that boats and other articles could be removed from the cabins and carspaces (or carports). There was a draft Flood Evacuation and Action Plan in the approved application that was by required by condition of consent to be updated and endorsed by council under condition 11. This had not yet been done by the applicant.

18 . In the appeals heard by former Chief Judge, she did approve a new stone wall along the river bank for a distance of about 400 m on Lot D. The wall started from the existing boat ramp of the Ko Veda caravan site on the eastern boundary of Lot D. It extended upstream to a rocky foreshore outcrop at the western boundary of Lot D. This wall had been built at the time of this current hearing.

19 . The new wall actually went past the western boundary of Lot D and along a section of foreshore that was either Crown road or council road reservation. No one could tell the Court at this hearing where the ownership lay. This extra length of new wall was about 50 m long to reach the rocky foreshore outcrop.

20 . There was an existing stone wall from the boat ramp eastwards along the river front of the original Ko Veda Ski Camp. The existing wall was also about 400 m long and was contained on the river boundary of Lot 1 DP 783552 and Lot 5 DP 729341. There was a third lot that had frontage only to River Road and it was Lot 1 DP 119919.

21 . During the hearing references to this wall on the original Ko Veda site were made as “Old Wall” and references to the wall on Lot D were made as “The New Wall”. On the original lot consent had also been granted by the council for a row of about 44 cabins set 30 m in from the old wall. These cabins had been built and were similar to those proposed on Lot D. They had been approved and built with garages attached whereas the Lot D cabins were required to have carspaces.

22 . The Court was shown on the view one of the existing garages said to be typical and it had in it a boat on a trailer and two cabinets with doors on them so that the contents were unseen and one water ski leaning against the wall and one refrigerator. The garage structure had timber studs and compressed cement weatherboard cladding and a sheet metal overhead door. Although the applicant said the width of the garage was not quite sufficient for two Australian Standard car parking spaces, the respondent pressed that it was practical to put a car and a boat on a trailer together in the garage.

Each cabin is permitted to have an attached open carport structure subject to approval being issued by council. Enclosed garage style structure will not be permitted.

24 . This was sought to be deleted by the applicant in the s 96 application and in condition 24, the condition for structural certification for flooding, the words “and associated structures” was to be inserted after the word “cabins”.

“This consent does not authorise erection of any pontoons or walkway structures within the Hawkesbury River. A separate application is required to be submitted to and approved by council prior to the erection of this structures”.

26 . The same approval did allow five pathways through the 30 m setback of the riparian vegetation to the river. The original application had shown 5 pontoons, one at the end of each pathway spaced about 80 m apart along the 400 m frontage to the river.

27 . The applicant sought to have condition 4 replaced by conditions in Exhibit P. And in view of this being part of the s 96 application the Court was told no alteration of Exhibit P or the wording sought for condition 24 could be determined by the Court without the consent of the applicant.

28 . In regard to the pontoons and the garages, the applicant agreed with respondents’ submission, that in determining if the proposal as amended was substantially the same as that which was approved, one should not have regard to the original application having 5 pontoons when they were excluded by conditions of approval. The original approval showed only open car spaces on the plans, so a similar approach applies in regard to the garages.

29 . The consent DA No. 2430/03/HE and associated documents show the proposal was in part for the cabins and “ double carports … may be provided on some sites and will be subject to subsequent approvals”. This was stated in Exhibit K volume 1 Page 19. Also where double carports are not provided there was to be an 18 sq m allowance for a car space and where double carports are provided there was an allowance of 38.4 sq m for the carport.

30 . The proposal in the s 96 application is for all cabins to have garages of the same size as double carspaces in the original application. The pontoons are a little different from the original proposal in that they are to be located at least 3 m beyond the line of reeds called Phragmites Australis occurring along the shoreline. There was also some young mangroves amongst the reeds.

31 . A metal framed gangway spans the distance from the top of the new stone wall to each pontoon. The gangway is to be painted black to minimise its visibility from the river. The pontoons had been reduced in size from the original development application to 3 m long parallel to the shoreline and 2 m wide. The pontoons would be light coloured in part to aid navigation. The smaller pontoon size was intended to allow only 1 boat at a time to pull alongside to embark or disembark. The longer gangways were to get the activity of the boats away from the reeds and shoreline.

32 . There was to be no mooring of boats from the pontoons or gangways so they could only tie up briefly for the above purposes. The Court was told the boats would go away to water ski or do other aquatic recreation.

33 . There was only one launching ramp for a total existing and proposed of about 130 cabins. At times the boats were not being used, such as lunch time, the Court was told the current practice was to moor at a number of buoys along the length of the old wall.

34 . These buoys were not owned by the Ko Veda Park. They were individually applied for by lessees of the cabin sites and granted by the Waterways Authority. There was no evidence that the same would or would not apply opposite the new cabins along the new wall. One could say any future buoys were an unknown quantity. The Waterways Authority had furnished a document saying it had no objection to the pontoons, and whether or not future licences for buoys would be issued would have to await individual applications.

35 . All these considerations were due to the importance of the reeds as a Larval fish and invertebrates and crustacean nursery essential to the fish stocks and ecosystem of the river. The reeds were also to function as a vegetative screen to the sea wall, and be linked with more vegetation on the river bank to preserve the important scenic attraction of the waterway and to screen the proposed cabins from view. The requirement to do both these things was both expressed and implicit in the applicable statutes being the Baulkham Hills LEP 1991 and Sydney Regional Environmental Plan No. 20 Hawkesbury and Nepean Rivers. Neither party disputed these obligations.

36 . The consent for the cabins required a variable 30-33 m setback from the top of the new wall. This was called a riparian zone and was to be planted out with various trees and shrub species that would screen the cabins from the river.

37 . The new wall was different to the old wall. The old wall was a vertical stone seawall set in mortar. The new wall was large loose boulders set in a stepped form up to about the same height as the old wall and on about the same alignment as the old wall. The gaps between the boulders were important to allow the reeds to grow from the shoreline up through the boulders to the transition of vegetation from aquatic to land base species. The larval fish invertebrates and crustaceans could also inhabit the gaps between the boulders especially when the tide was up.

38 . At the view the reeds were already growing up through the rocks in some places and had commenced to colonise the soil at the top of the new wall. Although the reeds are aggressive when undisturbed, the two flora experts differed on the how much disturbance the reeds could endure before it disappeared.

39 . The Court was shown that along the old wall there were no reeds at all, and the situation was the same at two other nearby water ski caravan parks. This was put down to:
· boats being beached to drop off and pick up passengers,
· the activity of people’s feet in the water and on the shore,
· the boat wake and propeller wash.

40 . Also neither party denied the possibility that unknown persons might clear the reeds in areas they wanted to use for fishing or access to boats and to the water.

41 . Along the new wall there was existing reeds for most of its length except at 5 locations. The first was near the boat ramp, two more opposite existing cabins on Lot D, each of which had buoys just off shore. A 4th was not far from a channel marker but otherwise with no cabin near it, and 5th was at the western boundary of Lot D near where a stormwater overflow pipe from a dam on Lot D discharged into the river.

42 . The existing consent that is subject of the s 96 application allowed the erection of the cabins in 4 stages on Lot D only after the 30 m riparian zone in front of each stage had been planted out and the vegetation reached an “advanced stage”. What that meant was unclear except that during the hearing mention was made of about 2 years for each stage. This was never confirmed.

43 . The consent allowed 5 access paths through the riparian zone. At the end of each path, the s 96 application proposed a pontoon. The existing consent in condition 6 attached conditions applied by The Department of Infrastructure Planning and Natural Resources. Two of the conditions Nos. 21 and 26 appeared to require that access paths be “point locations only” and that a single pedestrian path along the foreshore must be located on the landward side of the riparian zone adjacent the cabins. The provision allowed for an alternate plan to be considered and approved by the department.

44 . The plan of application showed a 2nd path full length along the top of the new wall. The Court asked if this path was in or out of the approved development. The respondent said a simple reading of the conditions meant it was out . The applicant said that the department was part owner of the land at the time of the original application and saw the original plan, and presumably it would come under the departments’ condition 21 provision “unless detailed on plans approved by the Department of Infrastructure Planning and Natural Resources”. As a result the applicant said that the 2nd pathway along the top of the new wall had been approved by the department. This matter was never fully clarified to the Court and is a consideration in understanding how important the pontoons might be for access to the water and the consequent impact on the riparian zone.

45 . The ecology experts of both parties agreed the pontoons were probably better for the protection of the riparian zone than no pontoons. Their disagreement was, on Dr Robertson’s side, that the activity around the pontoons would mean loss of reeds around them, and if people clambered over the new wall elsewhere, loss of reeds there too.

46 . Mr Sainty felt that the ease of access to boats afforded by the pontoons would mean people would favour them, be less likely to clamber over the new wall in other locations, and in any case with the pontoons being 3 m out from the reed beds disturbance from boat activity would not unduly effect the reeds.

47 . There was some debate about whether boats would reverse into the ends of the pontoons, and so have 2 boats at a time docked and then cause propeller wash right at the edge of the reeds. The applicant said that only one boat at the time would come in parallel to shore. This was the reason pontoons had been made smaller.

48 . The Court prefers Mr Sainty’s opinion that a prudent licensed boat driver would, given the water current in the river, come in parallel to the shore at slow speed and depart at slow speed until the boat was further off shore and then accelerate. If a skier was to jump start off the pontoon, a boat would have to idle out until the tow rope was almost full length before accelerating. If the occasional boat came in to the ends of the pontoons, it was logical the driver would come in nose first to keep the propeller in deep water.

49 . These questions had implications for Dr Lamb’s evidence for the applicant, as he had assessed the visual impact of the gangways and pontoons on the assumption that the reeds would stay and hide most of the gangways. If the reeds were not there, he did not support the pontoons.

50 . Ms McKenzie had actually assessed the visual impact for the respondent assuming 2 white pylons out at each pontoon to locate it in the riverbed and to provide tie up for the boats. No pylons were proposed. The pontoons were cantilevered out into the river via each gangway, with a strong structure on the top of the new rock wall providing the hinges necessary to allow the gangway to go up and down with the tide, and to hold the pontoon against the flow of the river and the weight of the boats tied to it.

51 . The concerns of the respondent were sought to be allayed by the applicant proposing conditions in Exhibit P. The management of the recreation facility would include provisions in the leases and licences for the cabin sites, and act to require occupants of cabins to access the river via the gangways and pontoons only. Signs would be erected to this effect. A lease or license may be terminated for the non-compliance.

52 . The pontoons would be removed if the reeds or other aquatic species such as mangroves were reduced within 4 m of each gangway after their erection. Regular reports by a suitably qualified person would be sent to council hence forth. The reports would be about the health and density of the aquatic plants to ensure their screening function persisted.

53 . The gangways and pontoons were designed to be easily removed in times of flood, so their removal to encourage regrowth of aquatic plants was a practical condition. The footway on each gangway was to be of open metal mesh to allow sunlight through. The experts agreed this would enable the aquatic plants under each gangway to grow even though their growth heights would be limited by the underside of the gangway. Their important ecological functions below waterline would be preserved.

54 . In regard to the garages proposed, it appeared to the Court that the major reason for the carports to be enclosed was for the security of items that might be stored in them. In times of flood the items, be they boats, cars, storage cabinets and their contents and loose equipment such as skis need to be removed. The applicant said that licencees of the cabins would be advised to do that, and if they could not come to the site before the time of flooding, the goods would be removed by management.

55 . There were already some 50 cabins in the Ko Veda site with garages, and the proposal would add 47 more. The respondent made the point that the logistics of removing the cars, boats and equipment, cabinets and goods was not the subject of any report in evidence including where all of it might be taken to for safety.

56 . The applicant put that one approach was if licensees of the cabins did not come for their goods they should be regarded as expendable or able to withstand inundation. The containment in the garage was said to ensure goods including boats etc left therein would not float away to become debris down stream.

Conclusions on Appeal No. 11291 of 2003

57 . The flooding frequency of carports or garages would be much more regular than the elevated cabins. The aims of the legislation including cl 16 of the Baulkham Hills LEP 1991 are:

(a) to reduce the impact of flooding on owners and occupiers and to reduce private and public losses resulting from flooding, and
(b) to reduce the impact of flood liability on owners and occupiers
58 . The council had good reason to impose the requirement of carspaces only, because anything stored in them would most likely be on wheels and could be reasonably easily moved at short notice. At other times the security of the goods by other means than enclosure would be necessary. The requirement of carspaces only would tend to minimise what might be left in the carspaces, and if council approved any carport, it would also minimise what was left under the carports.

59 . The applicant submitted that the two parts of the s 96 application in Appeal No. 11291 of 2003 being the pontoons and the garages are severable, and the Court could approve one and refuse the other.

60 . The Court has concluded that in the light of the councils approving the 47 cabins on Lot D and the consequent shoreline activity of occupants, the evidence on the pontoons and gangways showed that their inclusion offered a better prospect of the aquatic and riverbank riparian vegetation surviving. The vegetation’s function, as essential breeding and nursery habitat for invertebrates, larval fish and crustaceans should be protected. The additional visual function of the riparian vegetation in enhancing and maintaining the scenic beauty of the riverine landscape is another reason to seek to retain it.

61 . The visual impact of the gangways and pontoons was shown to be acceptable under the applicable statutes subject to the conditions in Exhibit P, and it is logical to have a pontoon at each of the five access points through the riparian vegetation to encourage the people to use the pontoons instead of clambering over the new wall to the foreshore.

62 . Given these improved outcomes the s 96 application does not change the development such that it is substantially different. Condition 4 even in its current form makes provision for the possibility of an application for pontoons. The amendments sought to condition 4 should be granted.

63 . In regard to the garages the Court has concluded that due to the provisions of cl 16 of the Baulkham Hills LEP 1991 there would be no reduction of impact on and losses to owners or occupants of the proposed garages in times of flood compared to the carspaces the council approved. There would be more storage capacity in such garages than in the existing on-site storage facilities that the proposed garages are alleged to replace. There was no condition requiring the removal of the existing on-site storage facilities.

“we are dealing with recreational/tourist facilities rather than with family homes and hence it is disposable/discretionary expenditure which can reasonably be put at flood risk subject to investors being aware of that risk”.

65 . The approval of garages in the past is no reason that an authority that is made aware of potential risk of flood inundation and damage should ignore its responsibilities. In the one in 2 year design flood and the 1 in 5 year design flood, damage and loss could occur to and in the garages that would not occur if only carspaces or carports are permitted. As the respondent submitted, with carspaces or even carports, loose items or storage cabinets, would have to be located in the cabins above the 1 in 20 year flood. In garages they would be subject to some hazard in a 1 in 2 year flood.

66 . Also the current terms of condition 5 exclude garages, unlike the terms of condition 4 in regard to pontoons. Any allowance of garages when assessed against the reasons why they are excluded by condition, would make the development as currently approved, substantially different to the s 96 amendment. The garages and the changes sought to condition 5 is refused.

67 . In the event that council does choose to grant consent to carports in accordance with condition 5, the amendment sought to condition 24 is allowed so that each carport is an associated structure with its cabin and must be certified as stable under flood.

The evidence on Appeal No 11290 of 2003

68 . Turning to the development application for a house on Lot 1 DP 512490 River Road, the Court was given plans in Exhibits A and B. The house was a simple structure with a hipped metal sheet roof and fibre cement weatherboards, up on stilts to keep the habitable rooms above flood level.

69 . The ground level was open carports with an entry and stair lobby and a laundry. There was an external set of steps up to a large balcony facing the river outside the living room. There was a bridge gangway from the balcony across to the River Road boundary to give flood free access for pedestrians.

70 . Lot 1 was 531 sq m in area and triangular in shape, and the house was located such that it was partly over the common boundary with Lot D, the Ko Veda tourist facility. As a result there was a foreshadowed subdivision that was not before the Court.

71 . The foreshadowed subdivision was indicated on Exhibit B the Landscape Plan. It proposed to take a strip of Lot D and add it to Lot 1 to create a theoretical lot called Lot 1300. It would have, if council approved it, an area of 2800 sq m.

72 . Lot 1 was separated from the Hawkesbury River by an unmade road reservation about 25 m wide. This is the same reservation along which the new wall was partly built.

73 . Where River Road came past Lot 1 on its south side it turned west on the edge of this unmade road reservation to follow the Riverside for a distance. There were 2 or 3 houses uphill of the road in the vicinity of Lot 1, they were spaced about 100 m apart.

74 . Going in the other direction, River Road was on the south side of Lot 1 and then turned eastwards towards Wiseman’s Ferry on the landward side of Lot D at the foot of the hills above the river.

75 . There was an existing access from River Road onto Lot D near Lot 1 and fill had been placed on Lot 1 and Lot D where the house was proposed. The enlarged Lot 1 included this access and would provide about a 40 m long drive from the road to the house, but the drive was almost parallel to the road so that the drive could stay on top of the filling.

76 . The house was setback 10 m from the River Road boundary whereas a 30 m setback is required under Development Control Plan No 1 . The house was to be about 4 m from the unmade road reservation on the banks of the river which would make the house about 30 m from the riverbank which complied with cl 13(2) of the Baulkham Hills Local Environmental Plan 1991 .

77 . The enlarged Lot 1 took a strip of Lot D from the banks of the river back to the drive entry off River Road. The lot would include an area below the batter on the downhill side of the filling to make up the 2800 sq m. This enlargement of Lot 1 was not to be a boundary adjustment, it was apparently a fresh subdivision under the statutes being cl 12(5)(g) of the Baulkham Hills Local Environmental Plan 1991 .

78 . The Court was told that because the existing consent for the old and the enlarged Ko Veda caravan park required amalgamation of all lots, the total area of the park would exceed the 10 ha minimum lot size for the Rural Zone 1(b), and the applicant believed the some of excedance of 10 ha could be taken from Lot D and added to Lot 1 to create theoretical Lot 1300.

79 . The respondent was concerned that the area to be taken was an important area of the Ko Veda development consent that required dense tree and shrub landscaping to soften and screen the cabins etc from view from River Road. This had been a relevant consideration in preserving the scenic beauty of the area as required by the statutes when approving the 47 cabins on Lot D.

80 . The drawing in Exhibit B only showed a 4 to 5 m wide indication of vegetation on the batter slope of the filling, whereas the Ko Veda consent showed a band some 10 m to 30 m wide adjoining Lot 1 as shown in the approved drawings in Exhibit K.

81 . The applicant, at the hearing marked Exhibit B in red to include new vegetation on the batter slope of the fill and all the land across to the eastern boundary of Lot 1300, and said it would be landscaped the same as the requirements of the Ko Veda development consent.

82 . It was noted at the hearing, that the 5th pontoon of the Ko Veda proposal before the Court would now be located within Lot 1300. The applicant said it would be moved so it was still within the residue of Lot D. However, this was not part of applicant’s s 96 application.

83 . It was also noted that the overflow pipe from the dam on Lot D just north of Lot 1300 would also be on Lot 1300 including its discharge point to the river. No final submission on how that could be dealt with was given to the Court, presumably because the subdivision was not a subject of this hearing.

84 . The west end cabins of the Ko Veda consent would also have a reduced setback to their side boundary. Roughly from scaling drawings in Exhibit K and B instead of 20 m wide side boundary setback with landscaping within that distance, the cabins would have about a 4 m side setback to Lot 1300.

85 . Mr Garland said the house was very plain design and in his discussions with the applicants expert found some changes may be intended. He did not know what they might be.

86 . Even with the amendments foreshadowed to the landscape plan he was concerned the house would be seen in close proximity to River Road when the controls sought that buildings be setback to maintain the scenic quality of the area.

87 . He was concerned the proposed elevated walkway from the house deck, across to the road to give flood free access, would also be seen from the road at close quarters. And, to go where it was shown and to achieve flood free clearance it would need to end on the road reserve not within the house lot.

88 . Some of the house would be seen from the river, and he recognised that people on the deck would want to see the river. So the draft conditions required that vegetation to screen the house need only be below handrail level on the river side of the house.

89 . He said at the time of assessment the plans did not show significant landscaping. He had not cross-checked with the Ko Veda consent and did not know about the extent of landscaping intended within it to screen the caravan park from River Road. Now he knew about the landscaping he thought from the road, you would still see the roof of the house at least. He accepted in cross-examination that if the vegetation grew high enough the roof may not be seen.

90 . He agreed there were other recently built houses along the river that had no screen vegetation, and did not appear to be required to have it by condition of consent.

91 . He agreed houses along the river were part of the scenery. And, with landscaping this proposal would be less visible than other houses.

92 . He had referred the assessment of the on site sewer disposal system to another council officer, Mr Colburt who had not furnished an expert report but had held discussions with the applicants sewer expert in the past several months. He was present in the Court.

93 . Mr Colburt was directed by the Court to write a summary of his position and discussions with Mr Smith the applicant’s expert. The Court needed to be informed on public health aspects, especially since the on site sewer system was not far from the dam on the Ko Veda site, and it drained to the river.

94 . Mr Geary, the applicant’s expert on flooding said the house’s main floor would be 0.5 m above the predicated 1:100 year flood. That means the carport and laundry of the house would be well underwater. He had recommended the elevated walkway to River Road to be at the same level as the main floor. People could then get to River Road which would be above flood level adjacent the house. But, the road would be underwater in other locations. Nevertheless the neighbours’ houses would be accessible.

95 . The floor of the carport being at about the same as the filled ground level at AHD 4.2 meant that the flooding frequency of the carport and laundry would be about 1 in 20 years.

96 . Mr Smith had reviewed the Ecomax on-site sewer disposal system for the West Australian Manufacturers and the NSW Department of Health.

97 . He used the Environmental Protection Authority and Department of Health Guidelines and the AS – NZS 1547.2000 standard.

98 . The system would look like a grass mound in a clear section of the house lot. The mound would be 6.6 m x 18 m, a central pipe in the mound distributed the effluent from a septic tank. The mound comprised of altered soil with ferric oxide on an impervious membrane called a “tray”. Grass grew on the top.

99 . The final treated effluent was much superior to a septic tank effluent, phosphorus and nitrogen were removed and it was tertiary treatment quality. It evaporated up through the mound of soil, some of it absorbed by the grass. It was called evapo-transpiration.

100 . He expected in extreme conditions such as high use and high rainfall some effluent would overtop the “tray”. But in his assessments referred to above he had never detected overtopping.

101 . He agreed the disposal area was closer than the required 100 m from the river, but it was the required 40 m from the dam and its piped drain to the river.

102 . He thought those requirements really applied to a septic tank effluent. The Ecomax effluent would not require that distance.

103 . The separation from the water table under the disposal area was 1.5 m vertically. The requirement was 1 m. He thought the dam on the Ko Veda site was 4 m to 5 m below the level of the disposal area.

104 . He said if the effluent got to the water table, the usual pattern would be to spread out evenly until it found a point of escape. In this case he thought the dam would be the point, and then the flow pattern would all go there. That meant with 40 m to the dam and about 120 m of pipe, it would be 160 m travel distance to the river.

105 . He agreed his test bores on the site were for a previous position of the treatment mound and uphill. But he was confident from the bores that the sub-surface structure of the soil at the new position was similar.

106 . Mr Smith resisted the inference that the authors of the 1998 EPA and Department of Health Guidelines knew about Ecomax and included it in its text as “amended earth” system. He said he only assessed Ecomax in May 1999 for NSW so it was after the research for the 1998 guide. “Amended earth” systems in the guide were for a different system. The guide needed to be updated.

107 . Mr Bardsley Smith said that neither the small existing Lot 1 or the foreshadowed Lot 1300 had any agricultural value, and allowing a house need not be prevented on that basis.

108 . He agreed there would be a lot of trees and vegetation around the proposed house, considering the amended Exhibit B plan that showed the screen vegetation to the road and the river, plus the wide buffer of vegetation on foreshadowed lot 1300 to screen the Ko Veda cabins.

109 . The only areas left clear of vegetation on the plans was the driveway and the mound of the Ecomax sewage disposal system and a space on the south side of the house between it and the Ecomax.

110 . It was put to Mr Bardsley-Smith this was not typical of houses along the river many of which could be clearly seen. He said that houses uphill of the proposal were partly hidden amongst trees, and there were others clear of trees, but he had not done the exercise to know what was typical.

111 . It was put to him with a minimum lot size for subdivision of 10 ha in the Rural 1(b) zone, a lot of 0.28 hectares was not typical. He said he had not surveyed the number of existing small lots that had development rights to know what was typical.

112 . It was put to him that houses set only 10 m from the road was not typical. He agreed it was closer to the road than most houses in the locality.

113 . It was put to him that the enlargement of lot 1 to become foreshadowed lot 1300 alienated the ownership of the important screen buffer vegetation for the Ko Veda caravan park development consent. He agreed that was true, but the vegetation could be extended onto other land within the residual Ko Veda site.

114 . He agreed the need to do that was due to the applicant Gelle's wish to enlarge lot 1 because it was too small, and the indication of that was the proposed house being located partly over the boundary of lot 1 onto lot D.

115. H e agreed if the Ko Veda buffer was on foreshadowed lot 1300, it could be sold off by Gelle to another owner who may not want to maintain the vegetation. And, to enlarge the area of screen vegetation on the Ko Veda site would necessitate another s96 application to amend the Ko Veda consent.

116 . It was put to him the applicant’s being prepared to plant and maintain vegetation on the vacant road reserve between the house of the river was another example of using someone else's land. He agreed that would be the case, but he did not think it was necessary as vegetation on lot 1300 would be sufficient in his opinion.

117 . It was put to him that based on his opinions, the already amended landscape plan for the house in exhibit B was not the ultimate landscape plan that should be a condition of any consent. He agreed it should not be the ultimate plan, so that a s96 application to amend any consent for the house would be needed too. This would enlarge the area free of screen vegetation at ground level to provide more yard space, but Mr Bardsley -Smith thought exhibit B had adequate yard space.

Conclusions on Appeal No.11290 of 2003
118 . The carport and laundry of the house were proposed at AHD 4.2. The 1 in 20 year flood is predicted to reach AHD 4.4, so that level of the house would flood at about 1 in 20 design frequency. Of course there is nothing to say that there could not be a sequence of floods that produces several floods of AHD 4.4 or even higher within a 2 or 3 year period. But that would be unusual, and the house is on rising land with access to flood-free land. At the expected design frequency, flooding in the position proposed for the house is not necessarily a reason for refusal.

119 . In regard to the Ecomax sewage disposal system some things concern the Court. The councils Development Control Plan No. 2- On-site Sewage Management Systems is current to April 2004.

120 . In clause 5.1 it specifies the Required Disposal Methods and under Secondary Treated Effluent lists:
Amended soil evapo-transpiration mound.That is a very good description of how Mr Smith describes the Ecomax system he evaluated for New South Wales Health Department in 1998. Even though he doubts the two are the same systems, it would seem DCP No.2 applies to this application.

121 . The councils development control plan may take a conservative approach when trying to ensure public health as well as not adding to the pollution of the Hawkesbury River. The setting of the buffer zones of 100 m from the river and 40 m from a dam may be conservative. Still the Ecomax is proposed only 50 m from river and at best 40 m to the dam or a little less when it is full.

122 . Mr Smith assumes, from his test bores on another location of the Ecomax, that any effluent will percolate through the soil, or spread out on the water table and go to the dam on the Ko Veda site, and not to the river. He said that gave 160m separation between Ecomax and the river.

123 . He relies on the high quality of effluent to say that the DCP No 2 buffer distances are not needed for the Ecomax.

124 . The respondent pointed out that if he is wrong and the DCP buffer distances should apply, then it means either pollution in the river or in the dam. And, saying it goes to the dam is of no great benefit because of the concrete pipe from the dam to the river. The buffer distances are set to enable percolation through the soil to cleanse the effluent. If the effluent goes to the dam it gets about 40 m of percolation and then the pipe carries it without further percolation to the river. A 100 m distance for percolation is required to the river. So on either count the Ecomax is too close to the river.

125 . Mr Colburt’s evidence supports the Court’s conclusion that the on-site sewage disposal proposed does not meet the DCP requirements for buffer distances to water bodies, and there is insufficient evidence for the Court to say the Ecomax system should be granted an exception to DCP No 2.

126 . Then there are unresolved matters such as:
§ the screen vegetation buffer required for the Ko Veda consent that is currently on lot D, but would be on foreshadowed lot 1300, would become alienated in ownership from the Ko Veda site and its development consent.
§ Lot 1300 would require a s88B instrument on title to enable Ko Veda owners to enter onto and maintain the screen vegetation, but that is not before the Court. Or, an amendment to the Ko Veda development consent would have to be considered to relocate the vegetation, and it is not before the Court.
§ The buried concrete pipe from the dam to the river is on foreshadowed lot 1300 and no proposal regarding its intended future status was before the Court.
§ The fifth pontoon and gangway and pathway through the riparian zone associated with the Ko Veda site at the west end of lot D, would be on foreshadowed lot 1300, and nothing was formally put to the Court on it. At least it would require another amendment application to the Ko Veda consent to be determined, or a s88B instrument on title of lot 1300 to enable them to be built, used and maintained.
§ Further, the side setback and boundary vegetation to the westernmost cabin of the Ko Veda consent would be greatly reduced and an amendment application would need to be considered in regard to it.

127 . All those unresolved matters are inextricably linked to any consent for the house because it straddles the boundary of lot 1 onto lot D, which lots are seeking separate decisions from the Court on the behalf of different applicants.

128 . In regard to the 30 m setback requirement to River Road it has been required by statute and controls to help preserve the scenic beauty of the area into the distant future.

129 . As Dr Lamb stated the acceptability of the house at 10 m from the road is less than desirable and depended on the extensive screen vegetation proposed, but even then its roof and its flood free bridge are likely to be seen up so close to the road.

130 . But, more than that, the Ko Veda site development consent requires extensive screen vegetation that will screen the cabins from being seen from River Road. As a consequence, the Ko Veda consent prevents people on the road seeing the pleasant scenic view of the river, mountains and foreshore to the east as one rises up to the crest of River Road adjacent to proposed house. This makes the remaining view over the river from the same point quite important

131 . With the house and its vegetation present, a major part of the remaining river and mountain scenery would also disappear from view. The controls and statutes seek to preserve this experience for travellers alongside the river. With less vegetation on the house site due to any relocation of vegetation onto the residual Ko Veda land, the house would be more visible. Given the small yard space on the south of the house between it and the Ecomax mound, it was likely any occupant would prefer more cleared areas around the house.

132 . Even with a foreshadowed lot 1300 at 2800 sq m versus the 531 sq m of the existing Lot 1, the proposed location of the house and associated structures would not be sympathetic to the applicable scenic protection objectives.

133 . The foreshadowed lot 1300 did not allow the house to be located in a position that may have far less impact-that is, minimums of 30 m from the river and 30 m from River Road and with its on-site sewage treatment disposal area 100 m from the Hawkesbury River and 40 m from the dam. One should be aware that these distances are minimums and the actual distances appropriate in individual cases may be greater. The added constraint on the land due to flooding does not justify concessions on the other requirements. Properties with constraints have de facto limited potential for development.

134 . In consideration of the sewage treatment and the scenic protection matters alone the house should be refused in the proposed position. Given the other unresolved matters any consent for another location of the house would be premature.

135 . Therefore the orders of the Court are:

1. In appeal No.11291 of 2003, the appeal is upheld in part. Existing consent No. DA 2430/03/HE issued in 1 August 2003 by Baulkham Hills Council is amended to permit 5 pontoons and associated gangways and on-shore foundation structures as shown on plans DA03, DA07 and DA09 all dated May 2002 by Integrated Site Design in exhibit P of this appeal, subject to the conditions in Annexure A hereto. The conditions to be added to the conditions of the original consent.

2. In appeal no. 11290 of 2003, the appeal is dismissed.

K G Hoffman

Commissioner of the Court

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Integrated Site Design Pty Ltd v Baulkham Hills S C and Dennis Gelle Pty Ltd v Baulkham Hills S C [2004] NSWLEC 346

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CITATION:	Integrated Site Design Pty Ltd v Baulkham Hills S C & Dennis Gelle Pty Ltd v Baulkham Hills S C [2004] NSWLEC 346
PARTIES:	APPLICANTS Integrated Site Design Pty Ltd and Dennis Gelle Pty Ltd RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	11290 & 11291 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- riverside tourist facility and caravan park - flood prone area - erection of garages in flood zone - installation of pontoons and gangways on the foreshore - erection of a house in the flood zone.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Baulkham Hills Development Control Plan No.1 Sydney Regional Environmental Plan No. 20 Baulkham Hills Local Environmental Plan 1991
CASES CITED:
DATES OF HEARING:	11/05/2004-14/05/2004
DATE OF JUDGMENT:	07/09/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister SOLICITORS Robilliard, Plowoman Herat RESPONDNET Mr A Gallasso, barrister SOLICITORS Phillips Fox