Kovarfi v Eurobodalla Shire Council

[2022] NSWLEC 1146

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kovarfi v Eurobodalla Shire Council [2022] NSWLEC 1146

Hearing dates:

14-15 March 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application 0697/21 for construction of primary and secondary dwelling houses, swimming pool, associated drainage/earth/civil works, and onsite waste disposal by sub-soil method on Lot 12 DP 1209317, Sanctuary Forest Place, Long Beach is refused.

(3) Approval application no. T0114/21 is refused.

(4) The exhibits are to be held.

Catchwords:

DEVELOPMENT APPLICATION – primary and secondary dwelling – onsite wastewater disposal – insufficient information – environmental impact

Legislation Cited:

Conveyancing Act 1900, ss 88B, 88E

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 1, 2, 50, 55, Pt 1, Sch 1

Environmental Planning and Assessment Regulation 2021, Sch 6

Eurobodalla Local Environmental Plan 2012 cll 2.3, 6.4

Evidence Act 1995

Land and Environment Court Act 1979, ss 34AA

Local Government Act, ss 68, 68A, 94, 176

Local Government (General) Regulation 2021, s 26

Texts Cited:

AS/NZS 1547-2012. Australian/New Zealand Standard. On-site domestic wastewater management

Environment & Health Protection Guidelines, On-Site Sewage Management for single Households, January 1998.

Eurobodalla Rural, R5 Large Lot Residential and E4 Environmental Living Zones Development Control Plan 2019

Eurobodalla Shire Council, Code of Practice On-Site Sewage Management, 2018

Land and Environment Court of NSW, Class 1 Residential Development Appeals, Practice Note, 2018

Sanctuary Forest Estate Integrated Environmental Management Plan, May 2021

Water NSW, Designing and Installing On-Site Wastewater Systems, 2019.

Category:

Principal judgment

Parties:

Z Kovarfi (First Applicant)
R Denny (Second Applicant)
Eurobodalla Shire Council (Respondent)

Representation:

Counsel:
Z Kovarfi (Self-represented) (First and Second Applicant)
N Simmons (Respondent)

Solicitors:
Sparke Helmore Lawyers (Respondent)

File Number(s):

2021/320444

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 0697/21 by the Eurobodalla Shire Council (hereafter the Council) which seeks construction of primary and secondary dwelling houses, swimming pool, associated drainage/earth/civil works, and onsite waste disposal by sub-soil method, on Lot 12 DP 1209317, Sanctuary Forest Place, Long Beach (the site).

Background

2. The DA was submitted to Council on 13 April 2021 and notified consistent with the relevant planning controls. After internal review, the DA was refused by Council on 13 October 2021.

3. The Applicants appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), as described in the Class 1 Application.

4. The Applicants also seek an order (2) in the Class 1 Application regarding the refusal by Council to grant consent to an application for Approval (T0114/21) for a (sub-soil) onsite sewage management system (hereafter the OSSM), lodged on 8 April 2021, pursuant to s 68 of the Local Government Act 1993 (LG Act). However, the Court notes that the Class 1 Application is not made pursuant to s 176 of the LG Act, therefore the Court does not have power to determine the application for Approval T0114/21. Despite the Class 1 Application inaccuracy, for clarity and procedural fairness to the Applicants, and for reasons given below, the Court has assessed and determines the order for the Approval, as sought by the Applicants.

5. The Court agreed to a conciliation conference, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), without an onsite view as requested by the parties, and which was held by Microsoft Teams. The conciliation conference was subsequently terminated as an agreement could not be reached, pursuant to s 34AA(2)(b) of the LEC Act, and the hearing held forthwith.

6. At the commencement of the hearing, the Council agreed for the Applicants to amend the plans and documents that support and subsequently amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). It is noted that the EPA Reg was repealed on 1 March 2021, however, pursuant to the savings provision in Sch 6 of the Environmental Planning and Assessment Regulation 2021, the previous regulations are required to be assessed for this DA under appeal.

7. It is noted that the amended plans in Exhibit C are not dated, although the parties agree to a date of 9 March 2021 being adopted. The plans were filed with the Court on 14 March 2021 and the Court hereby grants leave to rely on the amended plans described in Exhibit C, without opposition of the Respondent.

8. The documents identified by the parties for consideration by the Court in the assessment of the amended DA are as follows:

1. Exhibit 1 – Statement of Facts and Contentions (SoFC) for respondent, dated 6 December 2021.

2. Exhibit 2 – Expert report for Wastewater (Ms Rebecca Hardwick), dated 1 February 2022

3. Exhibit 3 – Expert report for Planning (Ms Rebecca Ireland), dated 14 March 2022

4. Exhibit 4 – Bundle of documents, including the following reference documents:

1. AS/NZS 1547-2012. Australian/New Zealand Standard. On-site domestic wastewater management. (AS 1547)

2. Designing and Installing On-Site Wastewater Systems. Current Recommended Practice. Water NSW. 2019. (OSSM Practice)

3. Environment & Health Protection Guidelines. On-Site Sewage Management for Single Households. 1998. (OSSM Guide)

4. Eurobodalla Rural, R5 Large Lot Residential and E4 Environmental Living Zones Development Control Plan 2019. (EDCP)

5. Eurobodalla Shire Code of Practice. On-Site Sewage Management. 2018. (Code of Practice)

6. Sanctuary Forest Estate Integrated Environmental Management Plan. 2021 (IEMP)

7. Instrument setting out terms of easements and restrictions of use of the Land. (Positive Covenants)

8. Various effluent disposal reports for the site and DA, dated 30 March 2021, 3 May 2021, 3 September 2021, 13 September 2021 and 22 September 2021 (the final report)

5. Exhibit A – SoFC for applicants, dated 21 January 2021

6. Exhibit B – Class 1 Application, including the following reference documents:

1. Final effluent disposal report

2. Site Classification to AS2870 for construction of footings and slabs, Lots 16 and 17, DP 731810 (Subdivision soil report)

7. Exhibit C – Amended plans, dated 9 March 2022.

9. The contentions as specified in Council’s SoFC, Exhibit 1, include:

1. proposed onsite wastewater disposal system/method is not suitable for the site, and

2. insufficient information to assess the proposed development.

10. The Court’s assessment of the DA under appeal focuses on the contentions as raised by Council, including the accuracy and reliability of the amended plans that support the DA (Exhibit C), and the appropriateness of the proposed OSSM as a sub-soil system.

The site

11. The site is an irregular shaped, north-south aligned lot, forming part of the Sanctuary Forest Estate, that was subdivided from Lots 16 and 17, DP 731810 (referred to by the parties as the ‘original consent’). The other lots of the Estate are currently under various stages of development.

12. The site fronts to Sanctuary Forest Place and currently has no structures. The front of the site is generally cleared and rises southwards to a ridge line, which then falls steeply away in a southerly direction through heavily forested area that forms the rear portion of the site.

13. In place of a site visit, the Court was shown a video, Exhibit 6, which the parties agree is an accurate reflection of the topography and vegetation on the site where development is proposed, as viewed from the street.

Jurisdictional prerequisites

14. Section 4.15(1) of the EPA Act establishes the matters to be considered in assessing and determining the DA under appeal, with specific reference to the contentions, as described below:

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.

15. Pursuant to addressing s 4.15(1) of the EPA Act, the following jurisdictional requirements are a consideration of the Court:

1. The Eurobodalla Local Environmental Plan 2012 (ELEP), at cl 2.3, establishes that the proposed development is situated over land zoned as C4 Environmental Living. The proposed development, as described to the Court, is permissible with consent within this land use zone and satisfies the objectives of the zone. The relevant standards and requirements of the ELEP are a consideration for the Court, with the Council contending that cl 6.4 Earthworks is not satisfied.

2. The relevant requirements of the Eurobodalla Rural, R5 Large Lot Residential and E4 Environmental Living Zones Development Control Plan 2019 (EDCP) are a consideration of the Court.

3. Various guidelines for (residential) on-site waste disposal, as described above as Exhibits, were assessed by the Court.

16. The Approval for the OSSM is sought pursuant to ss 68 and 68A of the LG Act, as described below:

68 What activities, generally, require the approval of the council?

(1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

(2) This section does not apply to the carrying out of an activity specified in Part B of the following Table—

…

Note—

A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence—see secs 626 and 627.

Table

Approvals

..

…

Part C Management of waste

…

5 Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility

6 Operate a system of sewage management (within the meaning of section 68A)

68A Meaning of “operate a system of sewage management”

(1) In this Part, operate a system of sewage management means hold or process, or re-use or discharge, sewage or by-products of sewage (whether or not the sewage is generated on the premises on which the system of sewage management is operated).

(2) Without limiting subsection (1), operate a system of sewage management includes the following—

(a) use artificial wetlands, transpiration mounds, trenches, vegetation and other effluent polishing, dispersal or re-use arrangements in related land application areas,

..

(4) In this section—

..

related land application area, in relation to a sewage management facility, means the area of land (if any) where it is intended that effluent and bio-solid waste from the facility will be re-used, applied or dispersed into the environment.

sewage includes any effluent of the kind referred to in paragraph (a) of the definition of waste in the Dictionary to this Act.

sewage management facility means—

(a) a human waste storage facility, or

(b) a waste treatment device intended to process sewage, and includes a drain connected to such a facility or device.

17. Sections 88B and 88E of the Conveyancing Act 1919 place restrictions on use of the land, which are relevant to the proposed development on the site. The site (Lot 12) has a number of Positive Covenants that burden the lot, and specifically in contention are Positive Covenants (3) and (6), which relate to wastewater management and use of the land.

18. To ensure appropriate assessment by the Court to grant consent, the DA must provide relevant and sufficient supporting information, pursuant to cl 50(1)(a) of the EPA Reg. The relevant information that the Court must consider, is detailed in Sch 1, Pt 1, cll 1 and 2, below:

Schedule 1 Forms

Part 1 Development applications

1 Information to be included in development application

A development application must contain the following information:

(a) the name and address of the applicant,

(b) a description of the development to be carried out,

(c) the address, and formal particulars of title, of the land on which the development is to be carried out,

(d) an indication as to whether the land is, or is part of, critical habitat,

(e) an indication as to whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats,

(f) a list of any authorities from which concurrence must be obtained before the development may lawfully be carried out,

(g) a list of any approvals of the kind referred to in section 91 (1) of the Act that must be obtained before the development may lawfully be carried out,

(h) the estimated cost of the development,

(i) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application,

(j) a list of the documents accompanying the application.

2 Documents to accompany development application

(1) A development application must be accompanied by the following documents:

(a) a site plan of the land,

(b) a sketch of the development,

(c) a statement of environmental effects (in the case of development other than designated development),

(d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation),

(e) an environmental impact statement (in the case of designated development),

(f) a species impact statement (in the case of land that is, or is part of, critical habitat or development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats),

(g) if the development involves any subdivision work, preliminary engineering drawings of the work to be carried out,

(h) if an environmental planning instrument requires arrangements for any matter to have been made before development consent may be granted (such as arrangements for the provision of utility services), documentary evidence that such arrangements have been made,

(i) if the development involves a change of use of a building (other than a dwelling-house or a building or structure that is ancillary to a dwelling-house):

(i) a list of the Category 1 fire safety provisions that currently apply to the existing building, and

(ii) a list of the Category 1 fire safety provisions that are to apply to the building following its change of use,

(j) if the development involves building work to alter, expand or rebuild an existing building, a scaled plan of the existing building,

(k) if the land is within a wilderness area and is the subject of a wilderness protection agreement or conservation agreement within the meaning of the Wilderness Act 1987, a copy of the consent of the Minister for the Environment to the carrying out of the development.

(2) The site plan referred to in subclause (1) (a) must indicate the

following matters:

(a) the location, boundary dimensions, site area and north point of the land,

(b) existing vegetation and trees on the land,

(c) the location and uses of existing buildings on the land,

(d) existing levels of the land in relation to buildings and roads,

(e) the location and uses of buildings on sites adjoining the land.

(3) The sketch referred to in subclause (1) (b) must indicate the

following matters:

(a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land’s boundaries and adjoining development,

(b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building,

(c) elevations and sections showing proposed external finishes and heights of any proposed buildings,

(d) proposed finished levels of the land in relation to existing and proposed buildings and roads,

(e) proposed parking arrangements, entry and exit points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate),

(f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity),

(g) proposed methods of draining the land.

(4) A statement of environmental effects referred to in subclause (1) (c)

must indicate the following matters:

(a) the environmental impacts of the development,

(b) how the environmental impacts of the development have been identified,

(c) the steps to be taken to protect the environment or to lessen the expected harm to the environment,

(d) any matters required to be indicated by any guidelines issued by the Director-General for the purposes of this clause.

19. Also, to be satisfied on the sufficiency of information to inform its assessment, the Court requires evidence consistent with the Land and Environment Court’s ‘Class 1 Residential Development Practice Note’ (the Practice Note). Relevant information that assists the Court in its determination is described in Schedule A, below:

Schedule A

Requirements for Plans

1. General:

 Plans should be drawn to an appropriate scale shown on the drawings;

 Plans should be drawn with clarity;

 Plans should indicate a north point; and

 All plans shall be consistent with each other.

2. Survey plans are to indicate:

 Existing buildings, structures and features of the site;

 Topography (spot levels, contours) including that of adjoining property where relevant;

 Natural drainage of the site;

 Any easements or rights of way;

 Significant existing vegetation, indicating its location on the site, type and spread;

 Location, height and use of any adjoining buildings or structures such as swimming pools; and

 Features of streets immediately adjoining or within the property, including poles, kerbs, crossings and pits.

3. Site plans are to identify the location of the following:

 Proposed and existing buildings;

 Existing significant trees, indicating whether they will be retained or removed;

 Paved areas;

 Landscaped areas;

 Driveway entry and/or exit;

 Garbage storage areas;

 On-site detention tanks;

 Letterboxes;

 Private open spaces; and

 Where privacy is an issue in the proceedings, the location of windows of

the adjoining property and the subject proposal.

4. Floor plans are to indicate:

 Room names, area and dimensions;

 The location of windows and doors;

 The levels of floors, terraces and the like to Australian Height Datum (AHD);

 Wall construction; and

 Spot levels of natural ground to AHD.

5. Elevations are to indicate:

 Elevations of all sides of the building or structure;

 Outline of existing buildings;

 Materials and finishes to be used in construction;

 Location of adjoining buildings showing address, height, setbacks and other relevant features;

 Proposed window size, sill height and location; and

 Height of eaves, ridge and floor levels to AHD.

6. Sections are to indicate:

 Appropriate number and location;

 Section line and location on plan;

 Room names;

 Adequate representation of ground level;

 Areas of cut and/or fill; and

 Height of levels to AHD.

7. Landscape plans are to:

 Be consistent with other plans tendered to the court with respect to the height, size and location of buildings;

 Indicate the location, species, height and spread of significant existing trees, indicating whether they will be retained or removed;

 Indicate the location of any additional planting to be carried out including species names, spread, height and other features;

 Indicate the location of significant retaining walls or other structures; and

 Indicate finished relative levels of all major surfaces.

20. The Practice Note also describes the conduct of the proceedings and responsibilities of participants, as well as a framework for preparing a SoFC (in Schedule B).

Evidence

21. The respondent has relied on Ms Rebecca Ireland and Ms Rebecca Hardwick for expert evidence on planning and wastewater related issues, respectively. The Court is satisfied that their expert reports and oral submissions are provided consistent with the Evidence Act 1995 (Evidence Act) and the Practice Note.

22. The Court is also satisfied that the SoFC for the respondent (Exhibit 1) reasonably and accurately establishes the relevant facts and contentions of the appeal. It is agreed that the format of the SoFC is not exactly as described in Schedule B of the Practice Note, however the intent of the SoFC and the contentions are clear, and the format does not disadvantage the applicant. I do not accept the applicant’s objection that the SoFC does not clearly establish the relevant contention of insufficient information, labelled as ‘Part C’ rather than ‘Part B3’.

23. The applicants have not tendered any expert evidence, written or oral, consistent with the Evidence Act or Practice Note, although does rely on various technical reports, described above, to support the amended DA and to inform the Court in its assessment.

Is there sufficient information to be satisfied to grant consent for this DA?

24. The Council contends that the amended plans relied on by the amended DA, in Exhibit C, are not sufficient, accurate nor consistent to enable proper assessment, and are not compliant with Sch 1, Pt 1 of the EPA Reg or the Practice Note. Also, it is contended that the proposed OSSM is not based on relevant and sufficient information to support the proposed sub-soil design.

25. After review of the documents before the Court in evidence, I agree with Ms Ireland that there are no dates, scales or legends, as would be expected on an architectural plan, and inconsistent plans to adequately describe the proposed development in sufficient detail to inform the Court. The plans provided for the Courts assessment are inconsistent in their detail relating to excavation and location of structures and are generally illegible due to font size/scale.

26. The Applicants rely on no expert evidence (written or oral) to assist the Court nor have they responded to Councils’ repeated requests to provide plans that are compatible with the requirements of the EPA Reg, and which would inform its assessment. Hearing Mr Kovarfi’s submissions, he fails to understand the necessity of this information to be assessed by the Council and the Court prior to consent for the DA under appeal. He does not appear to understand that sufficient and accurate information is essential to provide certainty to consent authorities approving a development.

27. I accept the Council’s submission that there is insufficient (and conflicting) information supporting the DA to be satisfied of the matters, pursuant to s 4.15 of the EPA Act. The requirements of the EPA Reg (Sch 1) are not adequately addressed, and I cannot be satisfied the provisions of the ELEP, specifically cl 6.4 are satisfied. These are preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent.

28. Based on the evidence before me, I am not satisfied that the proposed development is consistent with the provisions of the ELEP. I accept the oral evidence by Ms Ireland regarding uncertainty on the extent of cut and fill, and the Court cannot be satisfied that cl 6.4 of the ELEP, described below, is addressed:

6.4 Earthworks

(1) The objectives of this clause are as follows—

(a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b) to allow earthworks of a minor nature without requiring separate development consent.

(2) Development consent is required for earthworks unless—

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks are ancillary to other development for which development consent has been given.

(3) Before granting development consent for earthworks, the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b) the effect of the proposed development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

29. I accept the Council’s submission that the effluent disposal reports annexed to the (Class 1) Application do not provide sufficient detail to determine the slope or soil characteristics of the site, which is essential to inform the appropriate design, size and location of an OSSM on the site. I address the issue of the appropriateness of the (sub-soil) OSSM proposed on the site separately below.

30. After assessment of the evidence before me and the Council’s expert submissions, I find that there is insufficient information supporting the amended DA to be satisfied that the proposed driveway, water tanks and OSSM are sufficiently detailed and designed, to grant consent to the DA. The provision of sufficient information as it relates to earthworks is a precondition, pursuant to s 4.15(1)(a)(i) of the EPA Act and cl 6.4 of the ELEP, and which must be satisfied before the Court exercising the functions of a consent authority can grant development consent.

31. I am not satisfied beyond reasonable doubt that the supporting documents to the DA accurately describe the development to be carried out, which leads to uncertainty.

32. This finding of insufficient information is consistent with the reasons for refusal as made by the Council and as raised in the contentions. I consider that the amended plans do not resolve this issue as assessed by the Council’s experts.

Is the proposed (sub-soil) OSSM appropriate?

33. The Council contends that the proposed OSSM, as a sub-soil system, is not appropriate for the site, because the slope and soil characteristics of the site could potentially lead to adverse environmental impact. It is also contended that the proposed sub-soil design is not a ‘better’ outcome than the preferred alternative subsurface application (irrigation) design.

34. I accept Ms Hardwick’s evidence that there is insufficient information and detail provided in support of the DA and Approval, and specifically, the effluent disposal reports. I accept her evidence that the information relied on in these reports has not been gathered consistent with the requirements of the AS 1547 or the OSSM Guide. I agree that the effluent design should have been informed by at least three boreholes at a sufficient depth (below 0.3m) to assess the movement of effluent below the application depth, and through the soil profile. I do not accept Mr Kovarfi’s assertion that the Subdivision soil report (relating to the original consent for the subdivision) provides any relevant information to inform the design of an OSSM on the site.

35. I also do not accept that the effluent disposal reports accurately calculate the slope of the land or soil category, and in particular relating to the area for the effluent disposal. I accept Ms Hardwick and Ms Ireland’s estimation that the slope is likely greater than 15% and the soil is Category 5, which suggests that the subsurface application (irrigation) method, as described in the AS 1547 is a more appropriate option for this site. Mr Kovarfi could not explain how the slope calculation in the effluent disposal reports were made and the reports themselves are insufficient on the information/method used to inform and make its calculations.

36. I find there is insufficient supporting information in the amended DA (and Approval) provided in evidence to the Court to assess the slope or soil characteristics, and which would support a sub-soil designed OSSM on the site.

37. I accept Ms Hardwicks evidence that the Positive Covenants (3) and (6), that relate to the site, intend for the OSSM to be designed consistent with the requirements established in the OSSM Guide, AS 1547 and IEMP, and that the subsurface application (irrigation) method is preferred. I find that the proposed sub-soil OSSM design has not been assessed consistent with these reference documents, and therefore Positive Covenants (3 and 6) are not satisfied.

38. I accept Ms Hardwicks assessment that based on the information which supports the DA, a subsurface (irrigation) application system is a ‘better outcome’ and more appropriate OSSM design for this site. This system would minimise environmental impact to humans and surrounding habitats, and is also an option that is feasible considering the known constraints of the site.

39. I find, based on the evidence before me, that the proposed sub-soil OSSM as described to the Court has the potential to cause adverse environmental impact and that the development is therefore not suitable for the site. Therefore, s 4.15(1)(b) and (c) of the EPA Act are not addressed to my satisfaction to grant consent.

40. On the basis of the assessed inadequacy of the amended DA to the provide sufficient (and accurate) details on the functionality and reliability of the proposed sub-soil OSSM on the site (Lot 12), and that environmental impacts are not minimised, consent should not be granted for the proposed development.

41. For the reasons provided above, I also refuse order (2) of the Class 1 Application, and do not consent to the Approval T0114/21 (for the sub-soil OSSM), pursuant to s 94 of the LG Act. I find that the information supporting the Approval (relating to waste management) does not satisfy the requirements for site assessment, described in cl 26(4) of the Local Government (General) Regulation 2021.

Findings

42. I am not satisfied that cl 50(1)(a) or Sch 1 of the EPA Reg have been satisfied by the documents supporting the DA, as amended. I find that the amended DA under appeal does not adequately address subss 4.15(1)(a)(i), (b) and (c) of the EPA Act. I therefore cannot consent to the DA under appeal, pursuant to s 4.16(1)(b) of the EPA Act.

43. I am also not satisfied that the proposed sub-soil OSSM is appropriate for the site nor consistent with the restrictions on use of the site (Positive Covenants 3 and 6), pursuant to s 88B of the Conveyancing Act. The grant of Approval T0114/21 is not consented to, pursuant to s 94 of the LG Act Council.

Orders

44. The Court orders that:

1. The appeal is dismissed.

2. Development Application 0697/21 for construction of primary and secondary dwelling houses, swimming pool, associated drainage/earth/civil works, and onsite waste disposal by sub-soil method on Lot 12 DP 1209317, Sanctuary Forest Place Long Beach is refused.

3. Approval application no. T0114/21 is refused.

4. The exhibits are to be held.

…………………………

Sarah Bish

Commissioner of the Court

**********

Decision last updated: 23 March 2022