Karlos v Tweed Shire Council

[2019] NSWLEC 150

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eniflat Pty Ltd; Karlos v Tweed Shire Council [2019] NSWLEC 150

Hearing dates:

16-18/4/19; 3-5/7/19; 10/7/19, 16/7/19 (written submissions)

Date of orders:

18 October 2019

Decision date:

18 October 2019

Jurisdiction:

Class 1

Before:

Pain J

Decision:

(1) Development appeal proceedings number 18/384172 dismissed.

 (2) Development appeal proceedings number 19/32127 dismissed.

Catchwords:

APPEAL – refusal of development consent for water bottling facility at greater rate than approved in existing operation in rural landscape zone – greatly increased traffic impact on amenity and safety – impact of water extraction on natural systems

 

APPEAL – refusal of development consent for water bottling facility at greater rate than existing operation in rural landscape zone – increased traffic impact on amenity and road safety – impact of water extraction on natural systems

APPEAL – development control order to stop use of and demolition of unlawful tanks and pipes and limit extraction of water – exercise of discretion under s 8.18 of Environmental Planning and Assessment Act 1979

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 7.11, 8.7, 8.18, 9.34, Sch 5 Pt 1
Land and Environment Court Act 1979 s 39
Road Rules 2014
Roads Act 1993 ss 138, 139
State Environmental Planning Policy (Primary Production and Rural Development) 2019 cl 9
State Environmental Planning Policy (Rural Lands) 2008 cll 2, 7
Tweed Local Environmental Plan 2014 cll 1.2, 2.3, 7.10, 7.15, Land Use Table
Water Act 1912 s 116
Water Management Act 2000

Cases Cited:

Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2008] NSWLEC 181
Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464; [1939] HCA 23
Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Karlos v Tweed Shire Council (2018) 236 LGERA 146; [2018] NSWLEC 164
Kouflidis v Salisbury City Corp (1982) 29 SASR 321
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812
Mills v Cooper [1967] 2 QB 459
Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233; [1999] NSWLEC 239
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
Rich v Lennox Palms Estate [2009] NSWLEC 167
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Van Haasteren v South Sydney Council (2000)109 LGERA 252; [2000] NSWLEC 168
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Young v Parramatta City Council [No 2] (2002) 124 LGERA 361; [2002] NSWLEC 240

Category:

Principal judgment

Parties:

Matter No 18/384157
Eniflat Pty Ltd (Applicant)
Tweed Shire Council (Respondent)

  Matter Nos 18/384172, 19/32127
Larry Karlos (Applicant)
Tweed Shire Council (Respondent)

Representation:

COUNSEL:
A Gadiel, solicitor (Applicants)
M Wright (Respondent)

  SOLICITORS:
Mills Oakley (Applicants)
Marsdens (Respondent)

File Number(s):

18/384157, 18/384172, 19/32127

Judgment

1. These proceedings encompass three Class 1 appeals under the Environmental Planning and Assessment Act 1979 (EPA Act) and concern the future of an existing water bottling facility near Bilambil village in northern NSW. Two appeals are brought under s 8.7(1) of the EPA Act by Mr Larry Karlos (hereafter the Applicant) against Tweed Shire Council’s (the Council) deemed refusal of two development applications (DA). DA 18/0910 (DA 1) lodged 31 October 2018 seeks consent for the use of Lot 1 DP 735658 477 Urliup Road Bilambil (the Site) for a water bottling facility for the purposes of water extraction up to 28.5 ML per year. DA 18/1044 (DA 2) lodged 18 December 2018 is in similar terms but seeks the extraction of up to 59.995 ML of water per year. A third appeal is by Eniflat Pty Ltd (Eniflat) under s 8.18 of the EPA Act against the Council’s development control order issued 12 December 2018 (the Order) pursuant to s 9.34 of the EPA Act. The Order limits the level of water extraction on the Site and requires demolition of tanks and pipes. Eniflat owns the Site on which Mr Larry Karlos operates the water bottling business which is presently operating on the Site. Mr Larry Karlos has effective control of Eniflat.

2. On 21 December 2018 the Court ordered that the operation of the Order given by the Council to Eniflat be stayed until the disposal of these proceedings. All proceedings were ordered to be heard together. Most but not all the evidence relied on informs all three appeals. Some evidence tendered by the Applicant and Eniflat in the development control order appeal (Order appeal) concerns the exercise of discretion by the Court in that appeal.

3. “Water bottling facility” as defined in cl 7.15(3) of the Tweed Local Environmental Plan 2014 (TLEP) means a building or place at which groundwater from land in the RU2 rural landscape zone is extracted, handled or treated for commercial purposes. The water bottling facility (only extraction and treating is occurring at the Site) already operating on the Site does so under DA 03/0445 granted on 14 August 2003 for a certain level of water extraction and subject to other conditions, to be discussed further below. Trucks operated by a contractor come to the Site to collect water for delivery to water bottling and distribution businesses one of which is presently located in Queensland. How much water extraction is permitted under the existing DA is an issue in dispute.

4. On 19 November 2018, the Council received an application for a building information certificate (BC 18/0108) from Mr Matthew Karlos, son of Mr Larry Karlos, in relation to “5x 22,000L storage tanks plus associated slab footings, filling station/shelter, 3x commercial bores, driveway, pipework for commercial extraction”. BC 18/0108 is not yet determined by the Council. That building application is necessary to regularise a number of unlawful structures already in use in the existing water bottling business on the Site. The Order seeks removal of these structures.

5. There are a number of bores on the Site for which Eniflat holds water access licences and water supply works approvals under the Water Management Act 2000. “WAL” denotes water access licences and “WA” denotes work approvals. “BL” refers to bore licences issued under the Water Act 1912. The water access licences and work approvals and corresponding bores include: WAL40790 and 30WA320494 (bore 1); 30BL183219 (now referred to as WAL40789) and 30WA320492 (bore 2); 30WA308262 (bore 4, for stock and domestic use only); 30BL207356 (now referred to as WAL40789) and 30WA320492 (bore 5); and 30BL185414 (now referred to as 30BL207402, monitoring bore).

6. The role of the Court in a Class 1 development appeal is to determine a DA on its merits on the basis of the evidence before it.

Environmental Planning and Assessment Act 1979

7. The EPA Act relevantly provides:

Part 4 Development assessment and consent

…

Division 4.3 Development that needs consent (except complying development)

…

4.15 Evaluation (cf previous s 79C)

(1)   Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)   the provisions of:

(i)   any environmental planning instrument, and

(ii)   any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)   any development control plan, and

(iiia)   any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)   the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)   (Repealed)

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)   the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)   the public interest.

…

Part 8 Reviews and appeals

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Division 8.3 Appeals—development consents

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8.7 Appeal by applicant—applications for development consent

(1)   An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

…

Division 8.5 Appeals—development control orders

8.18 Appeals concerning orders

(1)   A person who is given a development control order may appeal to the Court against the order.

(2)   However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)   The appeal may be made only:

(a)   within 28 days after the development control order is given to the person, or

(b)   if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(4)   On hearing an appeal, the Court may:

(a)   revoke the development control order, or

(b)   modify the development control order, or

(c)   substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d)   find that the development control order is sufficiently complied with, or

(e)   make such order with respect to compliance with the development control order as the Court thinks fit, or

(f)   make such other order with respect to the development control order as the Court thinks fit.

Part 9 Implementation and enforcement

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Division 9.3 Development control orders

9.34 Orders that may be given

(1)   The development control orders that may be given under this Act are as follows:

(a) general orders in accordance with the table to Part 1 of Schedule 5

…

(3)   A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).

…

Schedule 5 Development control orders

Part 1 General orders

Column 1	Column 2	Column 3
To do what?	When?	To whom
1	Stop Use Order To stop using premises or a building Not to conduct or to stop conducting an activity on the premises	Premises are being used: •     for a prohibited purpose, or •   for a purpose for which a planning approval is required but has not been obtained, or •   in contravention of a planning approval. ...	•   The owner of premises or building •   The person using the premises or building
3	Demolish Works Order To demolish or remove a building	A building: •   requiring a planning approval is erected without approval, or •   ...	Owner of building or, ...

Land and Environment Court Act 1979

8. Relevant provisions of the Land and Environment Court Act 1979 (LEC Act) state:

Part 4 Exercise of jurisdiction

…

Division 4 Special provisions respecting Class 1, 2 or 3 proceedings

…

39 Powers of Court on appeals

(1)   In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)   In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)   An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)   In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)   The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

…

State Environmental Planning Policy (Rural Lands) 2008

9. The State Environmental Planning Policy (Rural Lands) 2008 (Rural Lands SEPP) now repealed applies by operation of the savings provision in cl 9 of the State Environmental Planning Policy (Primary Production and Rural Development) 2019 and provides:

Part 1 Preliminary

…

2 Aims of Policy:

The aims of this Policy are as follows:

(a)   to facilitate the orderly and economic use and development of rural lands for rural and related purposes,

(b)   to identify the Rural Planning Principles and the Rural Subdivision Principles so as to assist in the proper management, development and protection of rural lands for the purpose of promoting the social, economic and environmental welfare of the State,

(c)   to implement measures designed to reduce land use conflicts,

…

Part 2 Rural Planning Principles

7 Rural Planning Principles

The Rural Planning Principles are as follows:

(a)   the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas,

(b)   recognition of the importance of rural lands and agriculture and the changing nature of agriculture and of trends, demands and issues in agriculture in the area, region or State,

(c)   recognition of the significance of rural land uses to the State and rural communities, including the social and economic benefits of rural land use and development,

(d)   in planning for rural lands, to balance the social, economic and environmental interests of the community,

(e)   the identification and protection of natural resources, having regard to maintaining biodiversity, the protection of native vegetation, the importance of water resources and avoiding constrained land,

(f)   the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities,

(g)   the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing,

(h)   ensuring consistency with any applicable regional strategy of the Department of Planning or any applicable local strategy endorsed by the Director-General.

Tweed Local Environmental Plan 2014

10. Relevant provisions of the TLEP under which development consent may be granted provide:

Part 1 Preliminary

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1.2 Aims of Plan

…

(2)   The particular aims of this Plan are as follows:

(a)   to give effect to the desired outcomes, strategic principles, policies and actions contained in the Council’s adopted strategic planning documents, including, but not limited to, consistency with local indigenous cultural values, and the national and international significance of the Tweed Caldera,

(b)   to encourage a sustainable local economy and small business, employment, agriculture, affordable housing, recreational, arts, social, cultural, tourism and sustainable industry opportunities appropriate to Tweed,

(c)   to promote the responsible sustainable management and conservation of Tweed’s natural and environmentally sensitive areas and waterways, visual amenity and scenic routes, built environment, and cultural heritage,

(d)   to promote development that is consistent with the principles of ecologically sustainable development and to implement appropriate action on climate change,

…

(f)   to promote the sustainable use of natural resources and facilitate the transition from fossil fuels to renewable energy,

(g)   to conserve or enhance the biological diversity, scenic quality and geological and ecological integrity of Tweed,

…

Part 2 Permitted or prohibited development

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2.3 Zone objectives and land Use Table

…

(2)   The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

…

Land Use Table

…

Zone RU2 Rural Landscape

1   Objectives of zone

•   To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•   To maintain the rural landscape character of the land.

•   To provide for a range of compatible land uses, including extensive agriculture.

•   To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land.

2   Permitted without consent

Environmental facilities; Environmental protection works; Extensive agriculture; Home occupations; Intensive plant agriculture

3   Permitted with consent

Airstrips; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Educational establishments; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Garden centres; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Hostels; Industrial retail outlets; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Jetties; Kiosks; Landscaping material supplies; Markets; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers’ dwellings; Signage; Timber yards; Transport depots; Truck depots; Turf farming; Veterinary hospitals; Water recreation structures; Water supply systems; Wharf or boating facilities

4   Prohibited

Any development not specified in item 2 or 3

…

Part 7 Additional local provisions

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7.10 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a)   the supply of water,

…

(e)   suitable vehicular access.

…

7.15 Water bottling facilities in Zone RU2 Rural Landscape

(1)   Despite any other provision of this Plan, development may be carried out with development consent for the purposes of a water bottling facility on land in Zone RU2 Rural Landscape if the consent authority is satisfied that development will not have an adverse impact on natural water systems or the potential agricultural use of the land.

(2)   Despite any other provision of this Plan, development may be carried out with development consent for the construction of a pipe or similar structure on any land for the purposes of conveying groundwater to a water bottling facility.

(3)   In this clause:

water bottling facility means a building or place at which groundwater from land in Zone RU2 Rural Landscape is extracted, handled, treated, processed, stored or packed for commercial purposes.

…

Roads Act 1993

11. Relevant sections of the Roads Act 1993 provide:

Part 9 Regulation of works, structures and activities

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Division 3 Other works and structures

…

138 Works and structures

(1)   A person must not:

(a)   erect a structure or carry out a work in, on or over a public road, or

(b)   dig up or disturb the surface of a public road, or

(c)   remove or interfere with a structure, work or tree on a public road, or

(d)   pump water into a public road from any land adjoining the road, or

(e)   connect a road (whether public or private) to a classified road,

otherwise than with the consent of the appropriate roads authority.

Maximum penalty: 10 penalty units.

...

139 Nature of consent

(1)   A consent under this Division:

(a)   may be granted on the roads authority’s initiative or on the application of any person, and

(b)   may be granted generally or for a particular case, and

(c)   may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and

(c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and

(d)   may be granted on such conditions as the appropriate roads authority thinks fit.

...

Statement of facts and contentions

12. The Council’s statement of facts and contentions (SOFAC) filed on 16 March 2019 in the DA 2 appeal proceedings states:

The Site

4.   The site is legally described as Lot 1 in DP 735658 with a street address of 477 Urliup Road, Bilambil.

5.   The site is irregular in shape, with an area of 14.41 hectares and a frontage of approximately 110 metres to Urliup Road.

6.   The site is intersected by Bilambil Creek which is zoned W1 Natural Waterway pursuant to the provisions of Tweed Local Environmental Plan 2014.

7.   The site is relatively flat adjoining Urliup Road, sloping steeply to the south east.

8.   Currently existing on the site is a dual occupancy development with associated buildings including a chapel, swimming pool and pool shed.

9.   There are other structures on the land, including:

•   A turning loop constructed in the front portion of the site;

•   Five (5) storage tanks (each with a capacity of approximately 22,000 litres);

•   Five (5) bores;

•   A canopy structure located at approximately the southern midpoint of the turning loop constructed on the site.

10.   An aerial photograph of the subject site (shaded yellow) and surrounds is provided below:

The Locality

11.   The site is located within Zone RU2 Rural Landscape pursuant to the provisions of Tweed Local Environmental Plan 2014. An extract of the LZN_004 in Tweed Local Environmental Plan 2014 is provided below, with the subject site outlined yellow:

12.   Surrounding land uses comprise rural land holdings used primarily for cattle grazing and dwellings.

13.   Urliup Road is located approximately 9km to the west of the Pacific Motorway at Tweed Heads.

14.   Urliup Road has varying seal widths, several creek crossings and tight radius curves. A sign is in place on Urliup Road near the intersection with Bilambil Road which states:

“WARNING This road is not suitable for heavy vehicles”.

Summary of evidence

13. The following exhibits were tendered by the Applicant and Eniflat:

1. Exhibit A – class 1 application (Order appeal);

2. Exhibit B – class 1 application (DA 1 appeal);

3. Exhibit C – class 1 application (DA 2 appeal);

4. Exhibit D – SOFAC in reply;

5. Exhibit E – statement of commitment by Mr Larry Karlos dated 15 April 2019;

6. Exhibit F – bundle of documents;

7. Exhibit G – Applicant’s supplementary bundle of documents;

8. Exhibit H – “Water Sharing Plan for the North Coast Fractured and Porous Rock Groundwater Sources 2016” (Water Sharing Plan);

9. Exhibit J – exhibit “MK-1” to the affidavit of Mr Matthew Karlos dated 23 March 2019;

10. Exhibit K – plan of bores at Site with corresponding water access licence and water approval numbers;

11. Exhibit L – amended notice of supporters;

12. Exhibit AA – conditions of consent in reply DA 1;

13. Exhibit BB – conditions of consent in reply DA 2;

14. Exhibit CC – acoustics report by Mr Hill;

15. Exhibit DD – addendum joint report of traffic and civil engineers (superseded by Ex 17);

16. Exhibit EE – conditions of purported bore licence 30BL207356 for bore 5;

17. Exhibit FF – extracts from websites titled “Constructing a bore” and “Licence conversions” published by WaterNSW and the NSW Department of Industry respectively;

18. Exhibit GG – revised plan of management prepared by town planner Mr Sinclair dated 3 July 2019;

19. Exhibit HH – landscape sketch plan prepared by Mr Sinclair dated 30 April 2019;

20. Exhibit JJ – s 94 plan “No. 4 – Tweed Road Contribution Plan” prepared by the Council dated May 2014 and spreadsheets concerning the contribution plan; and

21. Exhibit KK – s 7.11 plan (formerly s 94) “No. 4 – Tweed Road Contribution Plan” prepared by the Council dated September 2016.

14. The following exhibits were tendered by the Respondent:

1. Exhibit 1 – statement of agreed facts (Order appeal);

2. Exhibit 2 – statement of agreed facts (DA 1 appeal);

3. Exhibit 3 – statement of agreed facts (DA 2 appeal);

4. Exhibit 4 – bundle of documents (documents concerning DA 1 and DA 2 and planning instruments);

5. Exhibit 5 – bundle of documents (documents concerning DA 1 and DA 2);

6. Exhibit 6 – bundle of documents (documents concerning DA 03/0445 and the Order);

7. Exhibit 7 – hydrogeology joint expert report;

8. Exhibit 8 – traffic and civil engineering joint expert report;

9. Exhibit 9 – town planning joint expert report;

10. Exhibit 10 – s 96 of the EPA Act (now s 4.55) modification DA 03/0445.02 dated 20 March 2015;

11. Exhibit 11 – two penalty infringement notices (PINs) issued by the Council to Mr Larry Karlos in 2014;

12. Exhibit 12 – conditions of consent DA 1;

13. Exhibit 13 – conditions of consent DA 2;

14. Exhibit 14 – notice of objectors;

15. Exhibit 15 – addendum to hydrogeology joint expert report;

16. Exhibit 16 – plan of distances between bores and sewage;

17. Exhibit 17 – supplementary traffic joint expert report;

18. Exhibit 18 – Department of Environment, Climate Change and Water NSW Road Noise Policy; and

19. Exhibit 19 – supplementary town planning joint expert report identifying dwelling distances from Urliup Road.

Background/chronology

15. DA 03/0445 was granted by the Council for use of an “existing stock and domestic water bore for the purpose of a rural industry comprising the harvesting and bottling of mineral water” on 14 August 2003 to Mr Larry Karlos. Truck size was limited to six metres and one truck (two trips) per day.

16. On 20 March 2015, the Council approved DA 03/0445.02 to modify a number of the conditions of consent, including deleting condition 4 and inserting a 12-month trial period permitting 10 trips per day on weekdays. The trial period lapsed on 20 March 2016.

17. On 3 June 2016, the Council approved DA 03/0445.04 to modify a number of the conditions of consent, including deleting condition 4A and inserting condition 4B limiting daily delivery movements to 12 trips per day.

18. On 18 August 2015, Mr Larry Karlos lodged DA 03/0445.03 seeking consent to modify condition 3 of DA 03/0445 to enable deliveries by vehicles up to 19 metres in length. That modification was notified and advertised by the Council to nearby and adjoining property owners from 26 August 2015. The Council refused DA 03/0445.03 on 11 May 2017.

19. On 11 October 2017, Larry Karlos commenced Class 1 proceedings appealing against the Council’s refusal of DA 03/0445.03.

20. On 24 July 2018 the Council issued a “Notice of Proposed Development Control Order” to the Applicant.

21. Representations were made to the Council on behalf of Eniflat by Holding Redlich Solicitors with reference to the “Notice of Proposed Development Control Order” by correspondence dated 6 August 2018. On 23 August 2018, the Council responded to the representations by sending a letter to Holding Redlich Solicitors.

22. On 24 October 2018 in Karlos v Tweed Shire Council (2018) 236 LGERA 146; [2018] NSWLEC 164 the appeal was dismissed and development consent refused to DA 03/0445.03.

23. As noted in [4] above, on 19 November 2018 the Council received an application for a building information certificate (BC 18/0108) from Mr Matthew Karlos.

24. On 12 December 2018, the Council served a development control order on Eniflat pursuant to s 9.34 and Sch 5 of the EPA Act in relation to the Site, being a “stop use order” (Stop Use Order) and “demolish works order” (Demolish Works Order).

25. DA 1 and DA 2 were lodged with the Council on 31 October and 18 December 2018 respectively. The DAs were refused by the Council on 11 December 2018 and 22 February 2019 respectively.

26. Why the Applicant seeks consent for DA 1 which on its face seeks consent for the current number of daily truck trips to and from the Site, namely 12 trips any day of the year (now proposed to be modified to exclude Sundays and public holidays), requires some explanation. The Council gave consent to DA 03/0445.04 in 2016 to allow an increase in trips from the then permitted two round-trips to six round-trips meaning up to 12 trips which is occurring today. Operations were permitted seven days a week. No traffic report was then required of the Applicant, as identified in the Council’s report dated 2 June 2016 at [54] below on the basis that there would be a minor increase in traffic.

27. That the number of days on which 12 trips can occur in a given year under DA 03/0445 was limited however arose because the Court held relatively recently that the annual level of extraction permitted by the consent is 5 ML/yr. That there is such a limit, the position of the Council, is a result of findings made in Karlos v Tweed Shire Council at [64] and [66]:

64   At the present time, at six loads of a six-metre truck per day, every day, with such a vehicle holding approximately 13,000 litres of water, Mr Karlos’s annual water extraction would be approximately 28.5 megalitres.

…

66   Obviously, having regard to the volumetric limit imposed by the Water Regulator’s GTAs in 2003 (and remaining currently operative), Mr Karlos's activities would exhaust that volumetric entitlement (if operating at the maximum present permitted daily six-metre vehicle’s capacity) in approximately 64 days.

28. That the limit under DA 03/0445 was 5 ML/yr, I infer from Karlos v Tweed Shire Council at [3], arose only in the course of those proceedings. As Moore J identified, the limit of 5 ML/yr transported by six trucks of 13,000 litre capacity per day means the business can only operate 64 days per year as the legal limit. As a result of the parties’ submissions in these development appeals I must consider again what the annual limit on water extraction is under the current consent.

29. As identified in the evidence of Mr Matthew Karlos summarised below at [77], water extraction up to the limit of 12 trips per day every day of the year results in about 28 ML/yr being extracted, the current operation on the Site.

30. The proposal in DA 1 is that the business operate for 303 days per year which excludes Sundays and public holidays with six trucks (12 trips) per day. The proposal under DA 2 is that the business operates for 303 days per year with 13 trucks (26 trips) per day. The truck size sought is up to 7.3 metres measured bumper to bumper, the present truck size used by contractors collecting water at the Site.

DA 2 appeal (proceedings 2019/32127)

31. DA 2 seeks consent for the use of the Site including existing structures for the purpose of commercial water extraction of up to 59.995 ML in each 12 month period. The Applicant’s statement of environmental effects (SEE) dated 2 December 2018 as extracted in the SOFAC further describes the proposed development as follows:

(i)   The Applicant seeks development consent for the following development:

(A)   the use of the existing bores for commercial water extraction purposes;

(B)   the use of existing storage tanks for commercial water extraction purposes; and

(C)   the use of existing shelter/filling station, and driveway for commercial water extraction purposes;

(D)   Commercial Water Extraction for 59.995ML/Y.

...

(f)   The proposal would involve:

(i)   A maximum of 59.995ML of water would be taken out in each 12 month period;

(ii)   The water would be stored in five existing 22,000 litre water tanks;

(iii)   The water would be transported by trucks up to 7.3m with a maximum capacity of 13,000 litres. The vehicles are rigid trucks with a maximum length up to 7.3 metres;

(iv)   Approval is sought for up to 13 loads per day (i.e. 26 trips per day) This equates to 13,000 x 13 x 365=61.685ML/Y (The maximum amount extracted would however remain capped at the State licenced 60ML/Y. That is, there would be no more than 13 truck movements in any given day, but the total yearly truck movements would be no more than 4,615 (equating to a yearly maximum of 59.995ML/Y) Therefore, there will 130 less trucks throughout the year compared to if 13 trucks were to run every day up to a hypothetical total of 61.685ML;

(v)   The operating hours would be between 7am to 6pm Monday to Friday and between 8am and 6pm on Saturday and Sunday;

(vi)   All the necessary infrastructure to support the operation is currently in place.

32. DA 2 seeks consent to extract a greater amount of water than DA 1. A number of contentions are identified by the Council which overlap entirely with those for DA 1. The Council’s SOFAC identified the following contentions.

1. Aims of the Tweed Local Environmental Plan 2014

33. The first contention states:

1.   The development application should be refused because approval of the proposed development will have an unacceptable impact on the unstructured form and safety of Urliup Road and on the amenity and scenic quality of Urliup Road and in that regard is inconsistent with the aims of TLEP 2014. Further, inadequate information has been submitted to demonstrate that the proposed development is consistent with the aims of TLEP 2014.

Particulars

(a)   Clause 1.2 “Aims of Plan” of TLEP 2014 relevantly states as follows:

[extracted above at [10]]

(b)   The development application seeks consent for up to 13 vehicles, 7.3 metres in length, each having capacity to carry 13,000 litres of water to enter and leave the site per day. The size of vehicles and the weight and frequency of trips proposed is likely to have an unacceptable impact on the surface and shoulders of Urliup Road and on the safety of existing road users.

(c)   The development application as proposed is inconsistent with 1.2(2) of TLEP 2014 as it does not promote the responsible sustainable management and conservation of Tweed’s built environment, having regard to the impact the vehicles accessing the site will have on the condition of Urliup Road and on the amenity and scenic quality of Urliup Road.

(d)   No supporting material has been submitted with the development application to demonstrate that the commercial extraction of water from the relevant bores on the site will:

•   Promote the responsible sustainable management and conservation of Tweed’s natural areas and waterways;

•   Be consistent with the principles of ecologically sustainable development;

•   Promote the sustainable use of natural resources.

2. Character and objectives of the RU2 zone

34. The second contention states:

2.   The development application should be refused because the development is inconsistent with the character of the surrounding locality, and with the objectives of the RU2 Zone.

Particulars

(a)   The Land Use Table in TLEP 2014 sets out the following relevant objective in relation to the RU2 Rural Landscape zone:

“1   Objectives of zone

•   To maintain the rural landscape character of the land.”

(b)   TLEP 2014 seeks to permit a range of uses within the RU2 Rural Landscape Zone while maintaining the rural landscape character of the land. The rural landscape character of the land is comprised of (but not limited to) the topography, vegetation and agricultural vistas. These vistas and scenic amenity values would be diminished by granting consent for 7.3m vehicles to pass along Urliup Road up to 13 loaded truckloads a day (being 26 movements).

(c)   The development application seeks consent for the use of existing structures on the site, including storage tanks and filling station. Inadequate detail has been provided in the development application in relation to these structures in order to enable a proper assessment of whether they are likely to have an unacceptable visual impact on the character of the area.

(d)   In addition to providing vehicular access, Urliup Road is used by residents for horse riding and pedestrian-related activities, consistent with the rural character of the land. The proposed development seeks consent to operate between 7am to 6pm Monday to Friday and between 8am and 6pm on Saturday and Sunday (including public holidays), 365 days per year. No relief will be provided to residents from the operation of trucks in association with the proposed development, which is inconsistent with the objectives of the RU2 Zone.

(e)   Approval of the development application to allow up to 26, 7.3m long vehicles to pass along Urliup Road a day (being 13 trucks in and 13 trucks out) would have an unacceptable impact on the tranquil rural character of the locality.

3. Tweed Local Environmental Plan 2014 cl 7.15 water bottling facilities in RU2 zone

35. The third contention states:

3.   The development application must be refused because the Court would not be satisfied that the proposed development will not have an adverse impact on natural water systems or the potential agricultural use of the land, as required by clause 7.15 of TLEP 2014.

Particulars

(a)   Clause 7.15 “Water Bottling Facilities in Zone RU2 Rural Landscape” of TLEP 2014 states as follows:

…

(b)   Before the consent authority has the power to grant development consent to development for the purposes of a water bottling facility, clause 7.15(1) requires the consent authority to be satisfied that the proposed development will not have an adverse impact on natural water systems or the potential agricultural use of the land.

(c)   Insufficient information has been provided to demonstrate that the proposed development will not have an adverse impact on natural water systems or the potential agricultural use of the land. As such the Court, having the functions of the consent authority for the purposes of hearing and disposing of this appeal, cannot be satisfied that the proposed development will not have an adverse impact on natural water systems or the potential agricultural use of the land.

4. Aims and planning principles of the State Environmental Planning Policy (Rural Lands) 2008

36. The fourth contention states:

4.   The development application should be refused because approval of the proposed development will have an unacceptable impact as it is inconsistent with the aims of SEPP Rural Lands and the Rural Planning Principles. Inadequate information has been submitted to demonstrate that the proposal will result in a development that is consistent with the aims of the SEPP Rural Lands and Rural Planning Principles.

Particulars

… [terms of SEPP cll 2, 7 set out above]

(b)   Clause 7 “Rural Planning Principles” of SEPP Rural Lands states:

…

(c)   The development application has not satisfied the Aims of the Policy nor the Rural Planning Principles as it has not been adequately established that the development being for commercial extraction of ground water for water bottling is a sustainable use of this resource, or that it will not have an impact on the environment, agricultural uses or other groundwater or surface uses.

5. Impact on surface and groundwater systems

37. The fifth contention states:

5.   The development application should be refused because insufficient information has been submitted to enable a proper assessment of surface and groundwater system related impacts.

Particulars

(a)   Insufficient information has been provided in respect of the existing aquifer system, including long-term groundwater levels, water quality and aquifer properties. The connectivity of various aquifers in the local area with each other and the surrounding environment under current and proposed conditions has not been properly assessed.

(b)   Insufficient information has been provided to demonstrate that there will not be an impact on existing or potential neighbouring groundwater users.

(c)   The extraction bores are located in close proximity to a number of natural watercourses. Insufficient information has been provided in respect of the hydrological character of the nearby natural watercourses which may be affected by the proposed development.

(d)   It has not been demonstrated that the proposed development will not have detrimental impacts on local springs or baseflow conditions within the nearby watercourses.

(e)   It has not been demonstrated that the extraction bores will not detrimentally impact on any groundwater dependent ecosystem such as local springs or spring fed watercourses.

(f)   The extraction bores are located within close proximity to a number of on-site sewage treatment and disposal systems. It has not been demonstrated that an appropriate separation distance between the extraction bores and the sewage management systems can be achieved, and that the extraction bores and proposed development will not be detrimentally affected by such sewage management systems.

(g)   The impacts of climate change on the proposed development and impacts of the proposed development have not been assessed.

6. Suitable vehicular access

38. The sixth contention states:

6.   The development application must be refused because it has not been demonstrated that suitable vehicular access exists between the Bilambil Village and the subject site to accommodate 7.3 metre long trucks, as required by clause 7.10(e) of TLEP 2014.

Particulars

(a)   Clause 7.10(e) “Essential Services” of TLEP 2014 provides as follows:

“Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(e)   suitable vehicular access.”

(b)   Urliup Road is meandering with a number of bends and a narrow alignment. It has not been demonstrated that a 7.3m vehicle and a car (or larger vehicle) are capable of passing one another, with particular concern raised in relation to the narrow bends located between the Bilambil Village and 477 Urliup Road (“the access route”).

(c)   Where there are points along the access route that are not able to accommodate a 7.3m truck and a car (or larger vehicle) passing one another, a Road Safety Audit (RSA) undertaken by an independent RMS accredited Level 3 Road Safety Auditor of Urliup Road must be provided.

(d)   The Audit must include details in relation to the following matters with respect to the provision of suitable vehicular access along the access route to accommodate the proposed 7.3m trucks:

(i)   details of the prevailing road conditions with respect to pavement width, road shoulder width, restricted sight distances on bends, traffic speed, speed limits, delineation, clear zones, hazardous embankments and batter slopes; and

(ii)   details of treatment measures required along the access route to facilitate safe access to and from the site for the proposed 7.3m truck length and other users of Urliup Road.

(e)   Having regard to the above, it has not been demonstrated that suitable vehicular access along Urliup Road is available, or that arrangements have been made to make suitable vehicular access available to facilitate the proposed development.

7. Integrity of Urliup Road

39. The seventh contention states:

7.   The development application should be refused because approval of the proposed development is likely to have an unacceptable short and long-term impacts on the integrity and design life of Urliup Road.

Particulars

(a)   Urliup Road is not presently capable of being relied upon because of structural concerns of damage caused by truck movements associated with the proposal. Issues include: insufficient pavement strengths; narrow and often poorly defined or constructed road shoulders that would be degraded by the proposed truck movements; the potential for existing bitumen seals and road shoulders to be damaged by truck traffic associated with the proposal; and the impact of the trucks passing each other upon any road side drainage system.

(b)   There has been no geotechnical assessment or survey of the condition of the existing pavement(s), sub-grade(s) and overall structural formation of Urliup Road to determine the extent of civil road and pavement improvement works that would be required to enable the proposal to be approved.

(c)   Details of how the Applicant proposes to adequately address ongoing maintenance along the Urliup Road access route to facilitate the development application have not been provided.

8. Safety

40. The eighth contention states:

8.   The development application should be refused because it has not been demonstrated that the approval of the proposed development would not have an unacceptable adverse effect on the safety, efficiency and ongoing operation of Urliup Road.

Particulars

(a)   The development application seeks consent to operate between 7am to 6pm Monday to Friday and between 8am and 6pm on Saturday and Sunday.

(b)   Urliup Road forms part of the bus route associated with Bilambil Public School, which is located on Bilambil Road close to the intersection with Urliup Road. The proposed operations between 7am and 6pm Monday to Friday coincide with bus pick up and drop off times, and operation of the school zone from 8am – 9:30am and from 2:30pm and 4:00pm Monday to Friday.

(c)   Operation of the proposed development during hours that the school bus is in operation raises safety concerns, and it has not been demonstrated that approval of the proposed development would not have unacceptable adverse effect on the safety, efficiency and ongoing operation of Urliup Road.

(d)   Approval of the development would result in increased potential for conflict between road users due to the narrow width of the existing road and pavement.

9. Public interest and amenity

41. The ninth contention states:

9.   The development application should be refused because approval of the proposed development would have an unacceptable impact on the amenity of residents in the locality and users of Urliup Road. Having regard to the impact on amenity, the number and nature of submissions received, and the contentions raised above, approval of the development application is not in the public interest.

Particulars

(a)   Approval of the development application is likely to compromise existing residents’ enjoyment of the rural landscape setting in which they live, as the proposed size of trucks, their weight and frequency of trips will create additional noise, visual impact and road conflicts.

(b)   The driveway which leads from Urliup Road is not sealed. Therefore, concern is raised to the impacts generated from dust to nearby residential properties, given the size of trucks, weight of loads and frequency of trips proposed along this unsealed driveway. The Applicant has not addressed these impacts.

(c)   The site and surrounding land parcels are identified as “Land suitable for grazing but not cultivation” and “Land unsuitable for agriculture” on the Respondent’s online mapping tool. The truck sizes and frequency of truck movements is inconsistent with the intent of surrounding land uses which would not generate truck movements as proposed. This is evident with surrounding land being identified as unsuitable for cultivation and agriculture which would otherwise likely generate more significant movements.

(d)   Residents raised concern in relation to the suitability of Urliup Road for the proposed development, having regard to the current state of the road and causeways that would need to be crossed by the heavy vehicles, and the impact the size of vehicles would have on the shoulders of the road which may cause deterioration and damage.

(e)   Residents have advised that Urliup Road is frequently used by people walking, cycling and horse riding. Approval of the development application will increase safety concerns and compromise the ability of residents to use and access Urliup Road for these recreational activities.

(f)   Residents have raised concern in relation to noise generated from truck frequency and the proposed hours of operation.

(g)   Approval of the development application for a water bottling facility and use of existing structures for the purposes of water extraction is not in the public interest having regard to:

•   the significant number and nature of submissions received;

•   the inability to undertake an assessment of whether it is appropriate to enable commercial water extraction of the scale proposed due to inadequate information being provided;

•   the impact that approval of the development application will have on the amenity of residents; and

•   the contentions raised

approval of the development application is not considered to be in the public interest.

10. Insufficient information

42. The tenth contention states:

10.   The development application should be refused because insufficient information has been provided to enable a proper assessment of the proposed development. The submission of further information as detailed below may require review of the contentions raised.

Particulars

(a)   Details of the height, location and dimensions of the unapproved structures located on the site have not been provided to enable an assessment of the appropriateness and adequacy of the structures and whether they would have any impacts that warrant refusal or require conditions. Plans, elevations and a survey are required, including details of pumps and staff amenities.

(b)   No details have been submitted which discuss the appropriateness of the use of the existing structures at the site.

(c)   The submitted Ecologic Report discusses increased capacities in relation to an alternative property. There is no report which is specific to the development application. A report that is specific to the proposed development is required in order to confirm the impacts from 59.995 megalitres of extraction and which assesses these impacts against the aims of the TLEP 2014 in order to demonstrate consistency with the aims of this plan.

(d)   Details as to how trucks access the site, length of stay and details of how water volumes are recorded as part of the proposed development have not been provided.

DA 1 appeal (proceedings 2018/384172)

43. On 31 October 2018, DA 1 was lodged with the Council seeking consent for a water bottling facility and use of Lot 1 DP 735658 (including existing structures) for the purpose of commercial water extraction of up to 28.5 ML in each 12 month period.

44. The Applicant’s SEE dated 28 October 2018 describes DA 1 as follows:

(i)   The Applicant seeks development consent for the following development:

(A)   the use of the existing bores for commercial water extraction purposes;

(B)   the use of existing storage tanks for commercial water extraction purposes; and

(C)   the use of existing shelter/filling station, and driveway for commercial water extraction purposes.

(D)   Commercial Water Extraction for 28.5ML.

…

(f)   The proposal would involve:

(i)   a maximum of 28.5ML of water would be taken out in each 12 month period.

(ii)   the water would be stored in five existing 22,000 litre water tanks;

(iii)   the water would be transported by 6m trucks with a maximum capacity of 13,000 litres. The vehicles are rigid trucks with a maximum length of 6 metres;

(iv)   approval is sought for up to 6 loads per day (i.e. 12 trips per day);

(v)   the operating hours would be between 7am to 6pm Monday to Friday and between 8am and 6pm on Saturday and Sunday.

(vi)   all the necessary infrastructure to support the operation is currently in place.

45. The same contentions as for DA 2 were identified for DA 1.

46. In the course of the hearing changes were made to DA 1 and DA 2 in relation to the hours of operation for which development consent is sought. No operation on Sundays and public holidays is sought.

47. The Applicant has clarified that the truck size sought is up to 7.3 metres. Mr Larry Karlos has confirmed that the size of truck currently used and intended to be used by the contractor carrying the water is up to 7.3 metres measured bumper to bumper, in contrast to measuring six metres axle to axle.

48. The Court went on a view of the Site and surrounds with the parties’ legal representatives and their experts during the hearing. The Court drove from Bilambil village along Urliup Road to the Site a distance of about 4.1 kilometres and viewed particularly narrow sections of the road on foot.

Key documents

DA 03/0445

49. The original terms of the 2003 consent stated:

GENERAL

1.   The development shall be completed in accordance with the Statement of Environmental Effects and accompanying plans prepared by Jim Glazebrook and Associates Pty Ltd dated March 2003, except where varied by these conditions.

2.   Deliveries are not permitted during school bus hours of operation on Urliup road.

3.   Delivery trucks are limited to six (6) metres in length, unless prior written approval is obtained from Council’s Director – development Services.

4.   Daily delivery movements are restricted to two (2) trips per day.

…

GENERAL TERMS OF APPROVAL UNDER SECTION 116 OF THE WATER ACT 1912 (Licence to commence sinking a bore to enlarge, deepen or alter a bore)

General Conditions

The purposes of these conditions are to:

…

•   specify the need to obtain a license, permit or authority before commencing any works

…

• Before commencing any works or using any existing works for the purpose of Commercial (Mineral Water Bottling) Purposes an approval under Part 5 of the Water Act 1912 must be obtained from the Department. The application for the approval must contain sufficient information to show that the development is capable of meeting the objectives and outcomes specified in these conditions.

…

•   All works involving soil or vegetation disturbance shall be undertaken with adequate measures to prevent soil erosion and the entry of sediments into any river, lake, waterbody, wetland or groundwater system.

…

Conditions relating to water entitlements

The purposes of these conditions are to –

•   specify that new water entitlement will not be issued (entitlements must already be held, or must be purchased)

•   allow rules for water transfers to be applied

•   specify an annual entitlement (regulated and unregulated streams)

•   allow the placement of limitations as to when water may be taken to ensure a flow remains for other users and the environment (unregulated streams)

•   An approval will only be issued in relation to a water entitlement that is already held by the owner of the land subject to this consent or is purchased from another entitlement holder.

• A transfer of an entitlement shall be subject to the provisions of the Water Act 1912 the regulations made thereunder and the transfer rules applying at the time of application as determined by the Department

•   The authorised annual entitlement will not exceed 5 megalitres.

…

Conditions for water use

...

•   If required by the Department the extraction and use of water must be recorded and reported as specified by the Department...

...

Conditions for Bores and Wells

See also “general conditions” and “conditions for water use”

The purpose of these conditions are to:

•   set a limited time for bore construction

…

•   Works for construction of bores must be completed within such period as specified to the Department.

…

•   The volume of groundwater extracted as authorised must not exceed 5 mega litres in any 12 month period commencing 1 July. The allocation will be reviewed if there is any change in the ownership of the land.

•   The Department has the right to vary the volumetric allocation or the rate at which the allocation is taken in order to prevent the overuse of an aquifer.

…

DEPARTMENT OF INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES

GENERAL TERMS OF APPROVAL FOR A LICENSE UNDER THE WATER ACT 1912 FOR DEVELOPMENT APPLICATION NUMBER 03/0446

General Conditions

The purposes of these conditions are to

…

•   specify the need to obtain a license, permit or authority before commencing any works

• specify that, in most cases an approval will only be issued to the occupier of the lands where the works are to be located (as required by the Water Act)

…

• Before commencing any works or using any existing works for the purpose of Temporary Dewatering for Construction Purposes, an approval under Part 5 of the Water Act 1912 must be obtained from the Department. The application for the approval must contain sufficient information to show that the development is capable of meeting the objectives and outcomes specified in these conditions.

…

Conditions relating to water entitlements

…

•   The volume of groundwater extracted as authorised must not exceed 10 megalitres.

•   Extraction of water under the approval to be issued shall be subject to conditions with regard to availability of supply and such restrictions as are deemed necessary by the Department from time to time to ensure an adequate flow remains for other water users and the environment.

…

Conditions for Bores and Wells

…

•   Works for construction of bores must be completed within such period as specified by the Department.

…

50. The SEE by Jim Glazebrook & Associates Pty Ltd dated March 2003 referred to in condition 1 describes the development at page 2 as follows:

•   installation of a 30,000 litre storage tank in the existing pool shed,

•   installation of filter systems to both the inlet and outlet of the storage tank,

•   connection of the existing bore to the storage tank,

•   establishment of a work and storage area for the bottling operations within the confines of the pool shed.

51. The SEE describes the infrastructure associated with the proposal as:

•   existing bore [the Court was informed that this refers to bore 1], located approximately 150 metres from the pool shed (bore licence No. 30BL 179893 issued by the Department of Land & Water Conservation, 25 January 2002) see Appendix A.

•   pool shed, part of Building approval 1221/95 issued by Tweed Shire Council, 1 November 1995.

•   30,000 litres plastic storage tank (see Photoplate 1).

•   Filter system (see Appendix B)

•   20 litre storage bottles.

52. The accompanying plans referred to in condition 1 of the consent are at Appendix C of the SEE. The single storage tank is shown to be located within a pool shed (as shown in Figure 1, which is the extract of Figure 2 in Appendix C below). The pool shed is located to the north of the existing dwelling on the land and the bore is located to the south of the existing dwelling on the land (as shown in Figure 2 (below), which is the extract of Figure 3 in Appendix C).

Figure 1: Extract of Figure 2 “Pool Shed Layout” in Appendix C of the SEE prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003.

Figure 2: Extract of Figure 3 “Site Plan” in Appendix C of the SEE prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003.

53. While other amendments were made by DA 03/0445.02 in 2015 these were superseded by DA 03/0445.04. Conditions 2B and 4B were inserted into the consent in 2016 by DA 03/0445.04 (conditions 2 and 2A were deleted) and state:

2B.   The hours of operation and deliveries are:

•   Monday to Friday 7.00am to 6.00pm

•   Saturday and Sunday 8.00am – 6.00pm

…

4B.   Daily delivery movements are restricted to 12 trips per day.

Council planning committee meeting agenda dated 2 June 2016

54. The agenda for the Council’s planning committee meeting on 2 June 2016 concerning the evaluation of DA 03/0445.04 (to allow an increase in trips from the then permitted two round-trips to six-round trips, meaning up to 12 trips) contains a report prepared by the Council’s development assessment and compliance team. The report provides inter alia a list of objections to the DA and the Council’s assessment of each:

Issue

Council Assessment

…

…

No submitted traffic assessment to demonstrate how it will not compromise the structural integrity of Urliup Road.

Given that the S96 is only a minor increase in the number of traffic movements a traffic assessment is not considered necessary.

There is no proposal to increase the weight or size of the delivery vehicle which would necessitate a review of the road’s structural integrity.

…

...

…

The proposal fails to adequately demonstrate how it will not compromise the structural integrity of Urliup Road, and the existing predominantly residential and rural traffic network of Urliup Road.

Given that the S96 is only a minor increase in the number of traffic movements a traffic assessment is not considered necessary.

There is no proposal to increase the weight or size of the delivery vehicle which would necessitate a review of the road’s structural integrity.

Karlos v Tweed Shire Council (modification appeal)

55. In his judgment refusing the Applicant’s modification of development consent application for DA 03/0445.03, Moore J made the following observations in relation to the layout of the Site:

42   However, during the site inspection, Mr Karlos explained to me the physical aspects of his water extraction operation. I reproduce, at Annexure A, the site plan provided to the Council with Mr Karlos’s 2003 development application. The effect of the incorporation of that plan in condition (1) of the 2003 consent is separately discussed. For the present purposes, it is appropriate to note that it gives a general understanding of the layout of the site.

43   However, it is also to be observed that, as also later discussed, this site plan does not depict the location of the turning loop which has actually been constructed on the site; the location of the five storage tanks on the hill to the south of Bilambil Creek that have been installed subsequent to the granting of the 2003 consent; the location of the additional bores that have been sunk since the granting of the 2003 consent; and the location of the water loading facility at approximately the southern midpoint of the turning loop now constructed on the site.

…

50   Mr Karlos pumps to five storage tanks located a little further up-slope from the two bores on the southern side of Bilambil Creek. A flat pad has been benched and these tanks, each with a capacity of 22,000 litres (giving a total storage capacity of 110,000 litres) have been installed in a closely spaced line on their pad, across the slope in a generally east-west line.

…

52   The filling station for the road tankers had a partial low brick enclosure that appeared to be about knee-high and open toward where the road tanker would pull up. There was also an awning over the equipment for the water loading apparatus.

Evidence

56. Parts of the Applicant’s and Eniflat’s affidavits were read for the Order appeal only as they concern matters relevant to the exercise of discretion by the Court in that context.

Larry Karlos

57. Mr Larry Karlos swore an affidavit dated 23 March 2019. He is the director of Eniflat which he controls and owns with Mrs Suzanne Karlos (his wife). Mr Karlos is 60 years old and has occupied 477 Urliup Road (a family farm) for 32 years. Eniflat is the owner of the land. Mr Karlos operated a restaurant for 38 years which he sold five years ago. At this time he has no material savings or superannuation for retirement. Mrs Karlos is unable to work. In 2003 Mr Karlos started a water extraction business at 477 Urliup Road. This business has built up slowly over the past 15 years. The costs associated with running and maintaining the Site include fencing, cattle, spraying, rates, insurance and general maintenance.

58. Mr Karlos and his wife rely on the water extraction business to make a reasonable income from the Site. The area was traditionally dairy country but the dairy farms and associated rural businesses in the area have shut down. The water extraction business provides work for local trades, transport, electricians and plumbers. This includes full-time employment for 6-7 full-time truck drivers. It also provides work for factory workers at the bottling end. The water extracted from the Site is supplied to numerous water bottlers including the indigenous family-run Waddi Springs business (which has purchased water from the Applicant’s business for approximately 10 years).

59. A significant proportion of Mr Karlos’ income is being used for legal and consultant costs. He has significant debt and limited savings. If Mr Karlos or Eniflat are not successful in these proceedings, Eniflat will be forced to sell the Site.

60. Mr Karlos swore a second affidavit dated 9 April 2019. In addition to the commercial use of 477 Urliup Road for a water extraction business, the Site is also used by him and his family for domestic and farming purposes. The farm currently has approximately 50 cattle, seven goats and between 15-20 chickens. When calves are born and reach maturity, some of them are sold to third parties. Mr Karlos and his family also grow various vegetables on the Site for personal consumption only.

61. The Karlos family use the covered structure, pipes and other equipment located on the access road west of the dwelling as a parking, maintenance and service point for their tractor (which is used for farming purposes) in order to change its implements and oil. There are two tap fittings in this area which are used to fill bottles for domestic use and fill drinking troughs for the livestock on the Site.

62. The five blue tanks on the Site are used for the water extraction business and for domestic use. The bore identified as 30WA308262 (bore 4) is used for domestic purposes and not for the water extraction business. The bore identified as 30BL183219 (marked as bore 2 on Ex K) is also used for domestic purposes. The bore identified as 30BL207402 is a monitoring bore. The bore identified as 30WA320494 (marked as bore 1 on Ex K) is not currently being used.

63. Mr Karlos stated in cross-examination that he initially extracted water from an aquifer through bore 1 through a filter system between 2003 and 2004 or so. Between 2004-5 Mr Karlos installed two 22,000 litre tanks. Subsequently and in the following order bores 2, 3, 5 and 4 were drilled and three more tanks were installed (either one or two and then the remaining tank/s were installed). If facing the five tanks today and looking up the hill, the middle two tanks (tanks 2 and 3) were the first tanks to be installed. The first tank from the left appears to be different to the other tanks. Tanks 2 and 3 were installed on a concrete slab larger than necessary to accommodate these two tanks. Mr Karlos put this sized slab down because he knew that the business would grow and that more capacity would be required. The concrete slab was not constructed according to an engineer’s design. Bores 2 and 5 have their own meters and are piped separately to the tanks. Bore 4 is typically used for stock and domestic purposes. There was previously a pipe connection between bore 1 and the tanks 2 and 3 which is no longer.

64. At present, water from bores 2 and 5 goes to the five tanks and the tank attached to Mr Karlos’ home for domestic use. Initially Mr Karlos sourced water for domestic use from a rainwater tank but then decided to source water from the five tanks due to contamination issues. Further, water for domestic use was solely sourced from bore 4 but due to a pump malfunction Mr Karlos has had to use all five tanks. The water stored in the five tanks is also used for farm purposes including irrigation and cattle troughs.

65. Mr Karlos stated that he is familiar with the terms of the water licences granted to him by the government. He was asked about development consents granted to him by the Council. Mr Karlos was responsible for giving instructions to Mr Glazebrook to prepare the s 96 (now s 4.55 of the EPA Act) application to amend the development consent. One of the conditions in the amended consent dated 3 June 2016 stated “[i]f required by the Department the extraction and use of water must be recorded and reported as specified by the Department”. Bores 2 and 5 are the subject of monitoring installed by Mr Karlos in either January or February 2019. Prior to this system being installed, the amount of water extracted from bores 2 and 5 was measured via an analogue meter. His son Matthew Karlos handles reporting. Mr Karlos said that he spoke with an officer from what he described as the “Department of Water” who told him that he could use water extracted from the bores for irrigation and domestic use so long as extraction did not exceed 60 ML.

66. Mr Karlos stated that he uses trucks that have a 13,000 litre capacity per load and operates seven days per week all year round except on some public holidays. Typically, six loads leave the Site per day except in certain instances for example where a truck has broken down. The “costs of running and maintaining the site” referred to in his affidavit dated 23 March 2019 do not differentiate between those associated with the water business and the farm.

67. Three trucks from Ross Transport Pty Ltd (Ross Transport) service Mr Karlos’ business, the sole transporting contractor for water from the Site. It is contracted to the bottling companies to which Mr Karlos supplies water.

68. The structure over the pumping or filling station for the trucks which draws water from the five tanks was constructed by engineer Mr Mark Pippard between 10-15 years ago. It was not built solely for the water business, it was also built for farm use (that is, for the tractor and as an irrigation point). There was nothing in the original development consent granted in 2003 that authorised this structure.

69. Mr Karlos used 16 or 19 metre trucks for the purpose of the water business between around 2006-16. He did not have written approval from the Council to use these trucks for the purpose of transporting water from the Site. Sometime around 2006, Mr Ray Clark from the Council told Mr Karlos that it was no problem for him to use milk tankers. No form of written approval from the Council to this effect was received.

70. Mr Karlos stated that he made an application to amend the development consent in June 2016 in relation to two truck sizes (5.6 and 6 metres). This is because he had received a call sometime before 2016 from Ms Galle stating that he was illegally using trucks that were too long.

71. Mr Karlos confirmed that he had been issued with two PINs by the Council on 9 October 2014 and 12 December 2014 for the number of trips to and from the Site. He disputed that these were in relation to the size of the trucks used because he had received verbal authority from a Council officer to use milk tankers.

Matthew Karlos

72. Mr Matthew Karlos swore an affidavit dated 23 March 2019. Mr Karlos manages the business on 477 Urliup Road. Since at least 1986 the Council and/or employees or contractors acting on behalf of the Council have used roads and turning bays on the Site for the purpose of turning around and loading and unloading vehicles. This has been necessary because once a vehicle passes the Site (heading south-west toward Murwillumbah) the road is unsuitable for access by large semi-trailers or similar vehicles. Since at least June 2016 Mr Karlos has seen the Council use the driveway on the Site to turn around a 21-metre low loader semi-trailer or similar vehicle, and load and unload heavy earth-moving equipment onto such a vehicle. Mr Karlos included photographs of the vehicles he sighted on or about June 2016, 1 March 2017, 30 August 2017 and 1 November 2017. The Council, private businesses and residents use Urliup Road to turn large vehicles (including but not limited to 21-metre long vehicles) all year round.

73. The water extraction business on the Site operates as follows. Water is extracted at a rate of six loads of a six-metre truck with a capacity of 13,000 litres per day, every day.

74. On 3 June 2016, Ms Galle a town planner for the Council (team leader of the development assessment planning and regulation division) told Mr Karlos that the 5 ML restriction in the consent was redundant so long as he had water licences from the NSW Office of Water to extract 60 ML each year and complied with the rules for truck movements.

75. On 2 August 2016 Mr Karlos had a meeting with Ms Galle and Ms Hundy from the NSW Office of Water. Mr Karlos had arranged this meeting to clarify that the representation Ms Galle had made that the Applicant was allowed to extract 60 ML of water per year was true. Ms Galle said that the NSW Office of Water had informed her that so long as there were extraction licences permitting the extraction of 60 ML, there would be no issue. Ms Hundy confirmed this.

76. In examination in chief Mr Karlos stated that the local school bus passes the Site at 8:00 am in the morning and 4:00 pm in the afternoon (give or take several minutes). The bus takes children to and from schools in Murwillumbah and does not take any children to and from the Bilambil school.

77. Mr Karlos stated that according to his knowledge at no time had the business received approval from the Council for the use of vehicles over six metres. The water licences entitle the family business to extract 55 ML from bores 2 and 5 and 5 ML from bore 1. Based on the current operation of the business, a maximum of 28.5 ML is extracted from bores 2 and 5 per year. A much smaller volume is extracted for other purposes.

Objectors

78. The Court heard from several objectors during the Site visit. Ms Champ resident of Urliup Road was concerned for the safety of all users of Urliup Road including car drivers, walkers, cyclers and horse riders. The four kilometre road (measured from the first bridge to 477 Urliup Road) narrows significantly, is winding with blind corners, blind hillocks and single-lane causeways and narrows further to a stretch of single vehicle wide roadway with a steep embankment on one side and a steep drop-off on the other. It is already scary passing the regular water trucks on the road and the proposed 26 intensive truck movements under DA 2 is dangerous. Trucks often pull off the roadside into a parking area and wait for another water truck to traverse the stretch of hazardous roadway before continuing. In wet conditions Ms Champ has spun out on a corner while passing one of the water trucks. Further the proposed volume of water to be extracted is excessive. Truck movements are also noisy and damage the rural amenity of the locality. The local residents have no town water and are reliant on the water from Bilambil Creek for domestic and stock needs particularly with rising temperatures and declining rainfall. The bore water extracted by Mr Karlos has a lower standard than tap water. According to the Environment Protection Authority, drinking water must have a pH of 6.5-8.5 and according to the Eco Logical Australia (Eco Logical) report relied on by the Applicant (see below at [92]-[96]), water from the main bores used has a pH of approximately 6.1.

79. Mr McIlveen resident of Urliup Road stated that Urliup Road (a predominantly single lane road) is not suitable for the increased amount of traffic proposed by DA 2. This increased amount of traffic may also damage the road surface. For example there are two narrow concrete causeways some 70 years old which have been showing signs of deterioration. It is unclear whether the increased number of truck movements can be confined to the allotted time of 7:00 am to 6:00 pm.

80. Ms Lambert resident of Urliup Road since 2002 stated that the seven day per week interstate trucking operation that now seeks a major increase of truck movements already has an unacceptable traffic impact on quiet and rural Urliup Road. Many in the community have had close encounters with the trucks and Ms Lambert has personally witnessed many of these. The Council’s application of compliance enforcement has been inconsistent. For years the Applicant’s business has been in breach of the DA consent conditions while the Council until recently has been reluctant to take action in response to complaints. The modifying DA in 2015 to remove certain restrictions on truck movements was hastily processed by the Council with no regard for the impact this would have on local residents. The challenging road conditions have not been given sufficient weight in considering the impact on the amenity and safety of the locality. The development is at odds with the TLEP and the Rural Lands SEPP since the “social, economic and environmental interests of the community” are impacted but have never been assessed. Nor has the development been shown to be in the public interest. The development is incompatible with other rural businesses including new opportunities now being promoted in the “Tweed Rural Land Strategy”.

81. Ms Downes resident at Urliup Road for almost five decades described the impact that the introduction of 19-metre water trucks had on the amenity of the locality. All sightseers and recreational users disappeared. This has consequently harmed the local economy. Ms Downes has personally experienced several near misses with the trucks and has heard similar incidents from other residents. Further the local residents rely on Bilambil Creek for household and agricultural usage, and it supports endangered flora and fauna. Ms Downes previously used the creek water to commercially grow echinacea but since Mr Karlos has been extracting water for several years she can no longer depend on the creek as a water supply. Ms Downes’ neighbour on Urliup Road filed a report with the Natural Resources Access Regulator in March 2019 stating he can no longer rely on the creek for raising livestock (which he has done since 1990) since Mr Karlos’ water extraction business began.

82. Ms Gresham spoke on behalf of Ms Parkes of the Bilambil Public School P&C Association. There is a steep descent into Bilambil village and cars are often banked up on the edge of the road waiting to turn into the school’s drop-off area reducing the available width of the road, causing large vehicles to suddenly slow down to pass the cars. Doubling the number of trucks on this route would double the risk of a tragedy occurring outside the school. Further the heavy water trucks pose a danger to students in the surrounding areas getting off and on school buses, including the crossroads at the top of the Bilambil hill and further down the winding Scenic Drive. At any time of the day there can be groups of children crossing or walking beside the road to participate in a sporting event. DA 2 would result in a water truck passing the school at least once every half hour. Ms Gresham also spoke on behalf of Ms Robinson director of Bilambil Community Preschool and OOSH Inc. She stated that families have had concerns in relation to the effects of additional water trucks travelling past Bilambil Road daily. The noise of the water trucks is invasive and distracting and there would be an obvious affect on kids in preschool and OOSH Inc. This is particularly because most of the children with additional needs have noise sensitivity difficulties. The outdoor area at Bilambil Community Preschool and OOSH Inc is used several times per day and the children’s teaching and learning would be disturbed. Children’s safety is also a major concern with extra trucks potentially increasing the chance of accidents occurring. Parking around the preschool and school is minimal meaning that families have to park alongside the road. There are no footpaths to walk on either side of the road and with cars parking, families often have to walk behind cars to get to the school or preschool. Families who live along Urliup Road who have children attending the preschool reported near misses as the water trucks speed along the road. They are also concerned with the environmental impacts to the region including those associated with increased water extraction from the creek.

83. Mr White representative for the Tweed Water Alliance described the various adverse impacts of water mining in the region. Tweed Water Alliance is a not-for-profit group formed to prevent a DA submitted to extract water from a rural property near Uki for bottling in Queensland. Mr White stated that there are no valid environmental impact studies at either a local or regional level which indicate that the industrial scale water extraction from Tweed Valley for the bottled water industry is sustainable. Ian Acworth Emeritus Professor at the University of New South Wales and past director of the Connected Waters Initiative Research Centre at the university said, in relation to the Eco Logical report (see below at [92]-[96]) submitted with at least two of the Applicant’s DAs that the water in the abstraction bores had a very similar chemistry to the water sample from the creek. This indicated a hydraulic connection between the two suggesting that pumping from the fractured rock would impact on the creek. Mr White also stated that climate change is resulting in warmer weather, increased evaporation and increased drier periods. Climate change is poorly accounted for in the reports relied on by the Applicant. They fail to examine trends associated with groundwater availability including temperature trends, evaporation rates or surface runoff versus recharge rates. None of the hydrological tests recommended by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) for mapping and understanding the fractured rock aquifers have been conducted in the Tweed Shire.

6. Cease the extraction of groundwater from the land in excess of the five (5) megalitre annual entitlement in any twelve (12) month period commencing 1 July contrary to the general terms of approval under section 116 of the Water Act 1912 contained in DA 03/0445 as modified.

Demolish Works Order

7.   Demolish and remove from the land the covered structure, pipes and other equipment located on the access road west of the dwelling on the land used for pumping water extracted from the land into delivery trucks.

8.   Demolish and remove from the land the five (5) blue tanks located south-west of the dwelling on the land.

216. The Court’s powers on appeal are identified in s 8.18(4) of the EPA Act.

Statement of facts and contentions

217. The SOFAC filed by the Council on 5 February 2019 in the Order appeal proceedings provides:

PART B: CONTENTIONS

1.   Orders No. 1 and 2 of the Stop Use Order should be confirmed and the appeal dismissed as the construction and use of the identified bores and tanks is not authorised by a planning approval, is being carried out in contravention of an existing planning approval and may have an adverse impact on natural water systems including surface and groundwater related impacts.

Particulars

(a)   The only development consent relating to the site that authorises the construction and use of bores and infrastructure in association with commercial water extraction is Development Consent DA03/445 (as modified).

(b)   Condition 1 of the development consent relevantly provides:

“1. The development shall be completed in accordance with the Statement of Environmental Effects and accompanying plans prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003; except where varied by these conditions”.

(c)   The Statement of Environmental Effects prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003 describes the infrastructure associated with the proposal as relevantly including:

•   existing bore, located approximately 150 metres from the pool shed (bore licence No. 30BL 179893 issued by the Department of Land & Water Conservation, 25 January 2002) see Appendix A.

•   pool shed, part of Building approval 1221/95 issued by Tweed Shire Council, 1 November 1995.

•   30,000 litres plastic storage tank (see Photoplate 1).

(d)   The single storage tank is shown to be located within the pool shed (as shown in Figure 1 above, which is the extract of Figure 2 in Appendix C to the Statement of Environmental Effects prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003).

(e)   Presently occupying the site are 3 additional bores identified as 30WA308262, 30BL183219 and 30BL185414, and five (5) blue tanks located south-west of the dwelling on the land used to store ground water extracted from any bore located on the land.

(f)   The development consent does not authorise the construction and use of the bores identified as 30WA308262, 30BL183219 and 30BL185414 or authorise the construction and use of the five (5) blue tanks located south-west of the dwelling on the land for the purpose of storing ground water extracted from any bore located on the land.

(g)   The construction and use of the identified bores and tanks is not authorised by a planning approval and is being carried out in contravention of an existing planning approval.

(h)   The use of the identified bores and tanks for the purpose of harvesting and bottling mineral water results in the authorised annual extraction limit of 5 mega litres being exceeded.

2.   Orders No. 3, 4 and 5 of the Stop Use Order should be confirmed and the appeal dismissed as the failure to comply with Conditions 2B, 3 and 4B of Development Consent DA03/445 (as modified) is in contravention of a planning approval and causes an adverse impact on adjoining landowners, other users of Urliup Road and Urliup Road itself.

Particulars

(a)   The only development consent relating to the site that authorises the extraction of water for commercial purposes is Development Consent DA03/445 (as modified).

(b)   Conditions 2B, 3 and 4B of Development Consent DA03/445 (as modified) are not being complied with in that deliveries are occurring on the land outside of the hours authorised by condition 2B of the development consent, delivery trucks attending the land and receiving water are greater in length than six (6) metres and daily delivery movements of greater than twelve (12) trips per day are occurring.

(c)   The operations described above are in contravention of a planning approval, is [sic] therefore a breach of the Environmental Planning and Assessment Act 1979 and is unlawful.

(d)   Non-compliance with condition 2B is likely to have an unacceptable adverse amenity impact on residents on Urliup Road as a result of noise generated by the movement of trucks in taking deliveries outside of the approved hours of operation.

(e)   Non-compliance with condition 3 causes an unacceptable adverse impact to the amenity and safety of road users of Urliup Road who will be unable to safely pass trucks greater than 6m in length having regard to the pavement width of Urliup Road, and which cannot safely negotiate the tight bends along Urliup Road.

(f)   Non-compliance with condition 4B is likely to have an unacceptable adverse amenity impact on residents and road users of Urliup Road, as an increased number of truck movements is inconsistent with the rural landscape character of the RU2 Zone and increases the risk of danger to other road users. Furthermore, additional movements are likely to further degrade the structural integrity of Urliup Road, particularly where combined with non-compliance with condition 3.

3.   Order 6 of the Stop Use Order should be confirmed and the appeal dismissed as the extraction of groundwater on the land in excess of 5 mega litres in any 12-month period commencing 1 July each year is not authorised by a planning approval, is in contravention of a planning approval and may have an adverse impact on natural water systems, including surface and groundwater related impacts.

Particulars

(a)   The only development consent relating to the site that authorises commercial water extraction is Development Consent DA03/445 (as modified).

(b) The development consent contains the following condition under the sub-headings “General Terms of Approval under Section 116 of the Water Act 1912” and “Conditions relating to water entitlements”:

“The authorised annual entitlement will not exceed 5 mega litres.”

(c)   Under the sub-heading “Conditions for Bores and Wells” of the development consent there is a further condition:

“The volume of groundwater extracted as authorised must not exceed 5 mega litres in any 12 month period commencing 1 July. The allocation will be reviewed if there is any change in the ownership of the land.”

(d)   Based upon the permitted amount of daily delivery movements and permitted size of the delivery trucks if twelve (12) trips per day were to occur then the extraction limit of five (5) megalitres per year would be exceeded in sixty-five (65) days. If more than twelve (12) trips per day is occurring and trucks larger than six (6) metres are being used then the annual extraction limit of five (5) megalitres would be exceeded in less than sixty-five (65) days.

(e)   Council has been provided with evidence in support of complaints that the Applicant has not been complying with the maximum length of delivery trucks permitted, or the maximum number of daily delivery movements permitted by the development consent.

(f)   In circumstances where the five (5) mega litres per year extraction limit commences on 1 July each year it is likely that the extraction limit will be exceeded before the end of September in that same year. An exceedance of the extraction limit of five (5) megalitres per year is a breach of the relevant condition of the development consent, is a breach of the Environmental Planning and Assessment Act 1979 and is unlawful.

(g)   The extraction of groundwater on the land in excess of 5 mega litres in any 12-month period commencing 1 July each year is not authorised by a planning approval, is being carried out in contravention of an existing planning approval and may have an adverse impact on natural water systems including surface and groundwater related impacts.

4.   Orders No. 7 and 8 of the Demolish Works Order should be confirmed and the appeal dismissed as the covered structure and associated pipes and equipment and five (5) blue tanks require planning approval and have been erected without planning approval.

Particulars

(a)   The covered structure and associated pipes and equipment and five (5) blue tanks are buildings or structures that require development consent for the construction and use.

(b)   The only development consent relating to the site that authorises the construction and use of any structures in association with commercial water extraction is Development Consent DA03/445 (as modified).

(c)   The development consent does not authorise the construction and use of the covered structure (filling station) and associated pipes and equipment and the five (5) blue tanks located south-west of the dwelling on the land for the purpose of storing ground water extracted from any bore located on the land and there is no other development consent authorising their construction.

(d)   Use of the covered structure (filling station) and associated pipes and equipment and the five (5) blue tanks facilitates an unauthorised use of the land, being the extraction of groundwater on the land in excess of 5 mega litres in any 12-month period commencing 1 July each year. Continued use of this infrastructure for that purpose may result in adverse impacts on natural water systems including surface and groundwater related impacts.

Evidence

218. Emails and letters from anonymous senders were received by the Council outlining concerns and providing evidence that the water trucks used by the Karlos family had breached the modified development consent DA 03/0445.

219. A formal complaint emailed to the Council dated 7 January 2018 stated that the conditions of operation for water truck movements were Monday to Friday 7:00 am to 6:00 pm and Saturday and Sunday 8:00 am to 6:00 pm. These conditions were constantly being breached. Further, nine trips were recorded per day, in breach of the condition of six trips per day.

220. A letter dated 19 January 2018 provided a log made between 10 December 2017 and 16 January 2018 of the number of trucks on Urliup Road before the permitted starting time for operation and the number of truck trips per day. For each day, at least one truck was recorded on the road before the permitted starting time of 7:00 am, with some trucks observed on the road as early as 5:30-6:30 am. On several days, 7-9 truck trips were observed.

221. An email dated 4 February 2018 attached several photographs depicting trucks on Urliup Road between 6:30-6:40 am on 31 January and 2 February 2018. There are also photographs depicting trucks of 6.5, 6.7 and 7.1 metres in length on a road on 3 February 2019. One of the trucks is labelled “Ross’s Water Deliveries”.

222. Two photographs dated 19 February 2018 depict trucks on the road near the Site between 6:39-6:52 am. A photograph dated 19 February 2018 depicts one truck at the filling station and another that appears to be driving away from the Site at 6:54 am. Three photographs dated 20 February 2018 depict a truck near the Site at 6:37 am, a truck that appears to be driving away from the Site at 6:54 am, and a truck entering the Site at 6:56 am.

223. Eniflat submitted that the Court should give little weight to this evidence. The material was unsworn and consequently not able to be tested. The emails containing the complaints and photographs were anonymous. The normal course for a council seeking to convince the Court that there is evidence of wrongdoing is to read an affidavit of a council enforcement officer. Merely because trucks are photographed as being on Urliup Road before 7:00 am does not mean they were on the Site at this time. Whilst the photographed trucks have the appearance of water trucks, there is no evidence confirming this to be the case. They could be dairy trucks, for example. It is unclear who took the photographs and whether the timestamps on them are legitimate or were added after the photographs were taken.

224. At the hearing the Council’s submissions about the necessity for the Demolish Works Orders in Orders 7 and 8 (par 4 of the SOFAC) were essentially neutral. The Council otherwise submitted that the Stop Use Orders ought to be made.

225. Eniflat relied on Mr Matthew Karlos’ affidavit dated 23 March 2019 and Mr Larry Karlos’ evidence concerning current operations of the water extraction business summarised at [59]-[69] above. Mr Matthew Karlos also stated in his affidavit that Order 1 issued to Eniflat would adversely impact on the current operation as extracting water from bore 2 is necessary to ensure that the business is viable. Order 2 would also be detrimental to the business since the five blue tanks referred to in Order 2 are essential for the continued operation of the business, provide drinking and other water used for the dwelling on the Site and for irrigation and day-to-day maintenance of the farm on the Site. The Applicant’s poor financial position outlined above at [59] was also relied on.

Consideration

226. I have dealt in the development appeals with all of the construction issues in relation to the 2003 consent relied on by the Council and stated at pars 1-3 in the SOFAC ([217] above). The legal effect of the 2003 consent is generally as identified in the particulars in pars 1-3 in the SOFAC. I stated at [166] above that according to the Applicant in the development appeals, bore 1 was the bore approved in 2003. I resolved above at [164] that the annual limit on water extraction is 5 ML/yr. Up to 12 truck trips per day as presently authorised under the amended 2003 consent amounts to 64 days per year being permissible. These findings mean the current level of use of the water bottling facility on the Site to extract up to 28.5 ML/yr is unlawful.

227. Paragraph 1 of the SOFAC concerns the use of bores and tanks. Only one bore identified as bore 1 in Ex K is permitted to be used under the 2003 consent as I identified at [166] above. I do not understand it was disputed that the five blue tanks with total capacity of 110,000 litres located to the south-west of the dwelling on the land for the purpose of storing groundwater lack planning approval. One tank with a capacity of 30,000 litres in a different specified location was approved under the 2003 consent. Paragraph 2 of the SOFAC concerns failure to comply with delivery times, the use of trucks greater than six metres in length and the failure to limit daily truck trips to 12. Paragraph 3 of the SOFAC concerns the failure to comply with the extraction rate of 5 ML/yr.

228. Eniflat submitted that if no development consent was granted for DA 1 or DA 2 the Order should be revoked or its operation suspended for an extended period of at least two years because:

1. the Council conveyed to Eniflat that it was able to carry out its current water extraction rate under DA 03/0445 (see Mr Larry Karlos’ oral evidence at [69] and [71] above and Mr Matthew Karlos’ affidavit at [74]-[75] above) (I accept that submission);

2. the continuation of the present level of water extraction is consistent with a water access licence issued by the NSW government (I accept that it is);

3. DA 03/0445 contemplates the construction of new bores. The Court cannot be satisfied that the bores that are in use are not bores contemplated under the development consent (I have found to the contrary at [166] above);

4. DA 03/0445 allows the extraction of up to 5 ML/yr of water with the potential for up to 10 ML/yr in the future (if there is a change in landowner) (I accept this submission);

5. Eniflat and future landowners should not be denied the benefit of DA 03/0445 (per Sch 5 cl 26 of the EPA Act) (I agree);

6. to the extent that there is a breach, the breach is purely technical which was unnoticeable other than to a person well-versed in the relevant law and the environmental impacts of the breach are acceptable (I do not agree the breach of the 2003 consent is technical);

7. the existing structures are static and long-standing. They cause no harm in themselves and the use of some of them are necessary to support farm activity on the Site (I accept that submission); and

8. the personal implications for the Karlos family of making the Order will be severe in light of the severity of the Karlos family’s financial situation (see Mr Larry Karlos’ affidavit dated 23 March 2019 at [59] above).

229. Eniflat referred to Van Haasteren v South Sydney Council (2000) 109 LGERA 252; [2000] NSWLEC 168 at [33] and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Kirby P) at 339 as relevant authorities in relation to the exercise of discretion.

230. As confirmed by those authorities, I have wide discretion under s 8.18(4) of the EPA Act when determining an appeal against an order to cease use and demolish structures, to revoke, modify and substitute another order inter alia. It is relevant to consider the lengthy history of the use of the Site for a water bottling facility and its regulation by the Council. Mr Larry Karlos did not develop the business from early on in conformity with the 2003 consent, building a number of additional tanks, pipes and installing several bores not the subject of DA approval and extracting more than 5 ML/yr from an unspecified point in time. Mr Karlos gave oral evidence that he used milk tankers some 16 metres in length for 10 years (see above at [69]), in clear breach of the conditions of consent which limited truck length to six metres. His oral evidence is that he believed he had permission to do so after a conversation with a council employee at an unspecified time.

231. The regulation of the traffic impacts resulting from the activities on the Site by the Council since granting development consent in 2003 has been largely absent or, in more recent times, highly inconsistent. No information about any regulatory action by the Council before 2014 is before me. Two PINs were issued to Mr Larry Karlos in 2014 by the Council which concerned the number and size of trucks. The Council has indeed reversed its earlier approach to the water bottling facility in these proceedings. The Council gave consent to the amendment of the 2003 consent in 2016 to allow an increase in trips from the then permitted two round-trips to six round-trips, meaning 12 trips, which is occurring today. No traffic report was required of the Applicant, as identified in the Council’s report dated 2 June 2016 above at [54] on the basis that there would be a minor increase in traffic. Operations were permitted seven days a week, having not previously been specified. In these proceedings the Council argued that because of the state of Urliup Road and traffic safety issues both DAs should be refused, including DA 1 which seeks to extend the number of days of 12 trips from 64 to 303 days. While I have accepted that contention from the Council in the related appeal proceedings, the impact for the Karlos family is significant.

232. Another area of inconsistency on the Council’s part which is highly likely to have contributed to the current unlawful level of water extraction in terms of the EPA Act (as opposed to the Water Management Act) is the Council’s view as to the volume of water permitted to be extracted under DA 03/0445, as Eniflat submitted. The uncontested affidavit evidence of Mr Matthew Karlos above at [74]-[75] is that in two conversations in 2016 Ms Galle council town planner confirmed that the maximum amount able to be extracted from the several bores on the Site was as licenced by the NSW Office of Water namely up to 60 ML/yr. The 5 ML/yr limit in DA 03/0445 was redundant. As already identified at [28] above, that the limit under DA 03/0445 was in fact 5 ML/yr, arose only in the course of the modification appeal Karlos v Tweed Shire Council determined in October 2018. The Council’s submission in these proceedings that the Karlos family could have sought legal advice in order to better understand DA 03/0445 is disingenuous given the expressed view of a senior council officer to Mr Matthew Karlos. It is understandable that this would be relied on by the Karlos family.

229. The affidavit and oral evidence from the Karlos family (see above at [60], [63], [64] and [77]) is that the tanks, bores and pipes and loading area with cover are also used for household consumption and in the primary production activity taking place at the Site. I also accept their evidence concerning the dire financial impact on them if DA 1 or DA 2 is not approved. According to Mr Larry Karlos’ affidavit evidence above at [59] he will have to sell the property if the current unlawful level of extraction cannot be maintained.

Exercise of discretion to make orders

234. I do not exercise my discretion under s 8.18 of the EPA Act to make the Demolish Works Order as the terms of the Order are not justified in these unusual circumstances. Importantly the infrastructure the subject of the orders is also used for domestic and primary production purposes and these uses should be allowed to continue.

235. The Stop Use Order requires that three specified bores are not to be used for commercial water extraction, that no commercial storage is to occur in the five blue tanks located on the Site, limits hours of truck movements, limits trucks to six metres in length, limits water extraction to 5ML/yr and truck movements to no more than 12 per day. Given the unsafe traffic conditions and other amenity impacts in the local area I have found above in the DA appeals, orders to stop the unlawful use are necessary. In other words I do not consider it is appropriate to revoke the Stop Use Order and allow the unlawful use to continue indefinitely.

236. At issue therefore is how long the current unlawful level of water extraction and hence unlawful level of truck traffic beyond 64 days per year (assuming 12 trips per day) should be allowed to continue by postponing the Stop Use Order taking effect. This level of extraction has been taking place for several years, since at least 2016 and possibly earlier. As I have found there are ongoing traffic safety and amenity impacts on users of Urliup Road and nearby residents, it is necessary to balance conflicting considerations in this regard. I consider a further two and a half years of operation at the current level is reasonable in all the circumstances.

237. I do not intend to make all the orders in the Stop Use Order and I am likely to amend others. Final orders will not be made until the terms have been discussed with the parties. Orders 1 and 6 are related in that Order 1 seeks to restrain the use of three specified bores for commercial purposes and Order 6 seeks to limit the rate of water extraction to 5 ML/yr. In relation to Order 1 Eniflat submitted that:

1. Order 1 (to cease using certain bores for extraction and storage or for commercial purposes inter alia) should be revoked for the following reasons:

1. the bore identified as 30WA308262 (bore 4) is not used in connection with the water extraction business and is used for domestic and household use (Mr Larry Karlos’ affidavit and oral evidence at [62]-[63] above) (I accept this evidence);

2. there is no evidence that bore 30BL185414 (now referred to as 30BL207402, monitoring bore) has not been constructed under the terms of the existing development consent (see [156] above) (I accept this evidence);

3. in any event bore 30BL207402 is only used as a monitoring bore (Mr Larry Karlos’ affidavit dated 9 April 2019 above at [62]) (I accept this evidence);

4. there is no evidence that bore 30BL183219 (bore 2 in Ex K) has not been constructed under the terms of the existing development consent (see [156] above) (I did not accept the Applicant’s submission about new bores being permitted under the 2003 consent);

5. if bores have been constructed under the terms of the existing development then their use is authorised by that consent (I have found to the contrary);

6. the bore identified as 30BL183219 is presently used for commercial water extraction and preventing its use would have adverse consequences for the viability of the existing business (Mr Matthew Karlos’ affidavit at [225] above) (I accept this evidence); and

7. that bore is also used to supply water for domestic and agricultural purposes (Mr Larry Karlos’ affidavit and oral evidence at [62] and [64] above) (I accept this evidence).

238. Order 6 prevents the extraction of groundwater from the land in excess of the 5ML/yr entitlement. Eniflat submitted Order 6 should be revoked for the following reasons:

1. the Order would be binding on future landowners as well as the current landowner (under cl 26 of Sch 5 of the EPA Act a development control order given to a person binds any person who is a subsequent owner as if the order had been given to that person – and under s 9.37(1) of the EPA Act a person to whom a development control order is taken to have been given must comply with the terms of the order);

2. the Order would deny a future owner who has the benefit of the existing development consent the opportunity to seek a review to increase the extraction limit to 10 ML/yr (under the provisions of the 2003 consent outlined in [142] above); and

3. as a matter of discretion, the Court should (in Eniflat’s submission) allow the existing use to continue indefinitely or for an extended period, and this requires extraction of up to 28.5 ML/yr).

239. Only one of the three bores (bore 2) specified in Order 1 is used for commercial purposes according to Eniflat. Order 1 arguably lacks utility even if amended to refer to the bores presently being used for commercial extraction (bores 2 and 5 according to Mr Larry Karlos’ evidence at [63] and [64] above) if Order 6 is made. I have accepted the Karlos’ evidence concerning the use of various bores for commercial and other purposes. I do not intend to make Order 1.

240. Order 6 should be made in some form. Order 6 may need to be amended to ensure the potential is preserved for 10 ML/yr extraction under the 2003 consent if a new owner takes over or a new development consent is granted.

241. Given that water for household and primary production purposes is stored in the five blue tanks I will not make Order 2.

242. Order 3 seeks to enforce the conditions of consent as amended in 2016 when hours of operation were introduced. Eniflat submitted that no credible evidence had been adduced by the Council to justify the making of an order that does no more than state the existing conditions of consent which Eniflat is bound by in any event. While the photographic evidence summarised above at [220]-[222] is not able to be tested in that it is not attached to any affidavit attesting to provenance, there is no evidence before me of any other businesses operating in this manner in this vicinity suggesting it is highly likely the trucks depicted are travelling to the Site. I do not consider the photographs which include time and date stamps should be overlooked. I infer that trucks are arriving far too early at the Site on at least some days given that collection is not to occur before 7:00 am Monday to Friday and not before 8:00 am on Saturday. This condition imposed by the Council in 2016 effectively allows trucks to be on Urliup Road earlier than 7:00 am at, for example, 6:45 am out of Bilambil in order to arrive at the Site at 7:00 am. The photographs show trucks travelling on Urliup Road much earlier than is necessary for a 7:00 am start at the Site. An order confirming the hours of operation of the business on the Site is warranted.

243. Order 4 requires that trucks be limited to six metres in length. Eniflat submitted that as a matter of discretion the Court should allow the existing use to continue indefinitely or for an extended period which allows the use of trucks up to 7.3 metres in length as the evidence confirms is presently in use. Given that trucks of substantially more than 7.3 metres in length have been used in the past in connection with this business an order limiting truck length to 7.3 metres should be considered, noting that is a breach of the condition of the 2003 consent. The suitability of such an order will be discussed with the parties.

244. Order 5 limits daily trips to 12 as already provided in condition 4B of the amended 2003 consent. I agree with Eniflat that no basis for making Order 5 has been established by the Council’s material as it cannot be tested. Before finalising the orders I will provide an opportunity for the parties to comment on draft orders to ensure they are workable and appropriate. A timetable for doing so will be discussed with the parties.

Orders

245. The Court makes the following orders:

1. Development appeal proceedings number 18/384172 is dismissed.

2. Development appeal proceedings number 19/32127 is dismissed.

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Decision last updated: 22 October 2019