Lopiglow Pty Ltd v Bellingen Shire Council
[1988] NSWLEC 112
•03/23/1988
Land and Environment Court
of New South Wales
CITATION: Lopiglow Pty Ltd v Bellingen Shire Council [1988] NSWLEC 112 PARTIES: APPLICANT
Lopiglow Pty LtdRESPONDANT
Bellingen Shire CouncilFILE NUMBER(S): 10224 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Agricultural Protection under the Draft Bellingen Local Environmental Plan 1987
Clean Water's Act 1970.CASES CITED: DATES OF HEARING: 15/02/1988, 19/02/1988, 01/03/1988 DATE OF JUDGMENT:
03/23/1988LEGAL REPRESENTATIVES:
JUDGMENT:
JUDGMENT
HIS HONOUR: This is an appeal to the Court pursuant to section 97(l) of the Environmental Planning and Assessment Act against the deemed refusal of development consent for the dredging of sand from the Raleigh Shoal in the bed of the Bellinger River and its transport and subsequent processing for commercial purposes upon land fronting both Valery Road and the Pacific Highway, Raleigh.
Pursuant to section 37(l) of the Land and Environment Court Act the Court has been assisted in these proceedings by Assessor G. Andrews.
The subject land and its locality
The subject land has two portions. One section comprises part of the bed of the Bellinger River known as the Raleigh Shoal, which extends from the Raleigh Bridge on the Pacific Highway to Mylestom Rail Bridge and from which the applicant proposes to dredge sand under lease from the Lands Department. The other part is the site of the sand processing plant, being lot 3, Deposited Plan No. 740565, of 5.573ha, with 2l4m frontage to Valery Road, Raleigh, at some 62m from the Pacific Highway and having 35m frontage to the Pacific Highway, some 214m north of the Valery Road intersection. There is a dwelling house situated upon lot 3, owned by Mr. K.A. Dein, one of the proprietors of the applicant company, Lopiglow Pty. Limited.
The Raleigh Shoal and the processing site are separated by the west bank of the Bellinger River and the Pacific Highway beneath which the applicant proposes to construct a pipeline for the supply of sand from the dredging operations. Situated upon the eastern bank of the River and opposite the Shoal is the Norco/C.D.A. dairy factory. It adjoins the northern edge of the Village of Raleigh, some 5km north of Urunga. The Kalang River joins with the Bellinger River further downstream near the ocean outlet lkm east of Urunga. The Village of Repton is about lkm north-east of the site on the Mylestom Road, which intersects with the Pacific Highway opposite and slightly north of the north-eastern corner of the processing site and some 270m from the Valery Road intersection. A caravan park adjoins the river and the Mylestom Road immediately west of the Village of Repton. An abattoir is situated about 1km north of the processing site, with access from the western side of the Pacific Highway.
The land surrounding the subject site is relatively low-lying, being used mainly for cropping and grazing of dairy and beef cattle, as is the processing site itself, other than the curtilage of the dwelling-house. That part of the surrounding area situated to the north of the processing site and extending west of the Highway to the foothills of Pine Creek Forest is the subject of the Raleigh Drainage Union, gazetted under the Drainage Act, which has operated for some 50 years. A system of drains connect to the Manarm Creek and the Manarm Overflow, the latter passing beneath the Pacific Highway some 200m north of the Mylestom Road intersection.
The subject land in normal conditions drains to the south, i.e., to Valery Road, along the southern side of which is a drainage channel which passes beneath the Pacific Highway via a concrete culvert to flow into the Bellinger River opposite the Raleigh Shoal. The general area is flood-liable, the 1 in 100 year occurrence interval floodwater of depth as much as 2 to 3m flowing over the subject site in a north-easterly direction towards the bend of the river near Repton, as shown on Figure 4.8 hereto.
The river is generally used for recreation purposes, particularly fishing and boating, including water-skiing mainly to the east of Repton. An oyster lease is situated on the east bank of the river opposite the northern end of Raleigh Shoal.
Zoning and Development Control
The Raleigh Shoal within the Bellinger River is zoned Non-Urban l(a) and the processing site is zoned Non-Urban l(b) under Interim Development Order No. 1, (the IDO), gazetted 12 September 1969, a deemed environmental planning instrument. Under the instrument the subject development is permissible with consent, as well as being designated development pursuant to item (n), (Extractive Industries) Schedule 3 of the EPA Regulation.
Relevant provisions of the IDO are as follows:-
"7. Where application is made to the Council for consent or approval:
(a) to carry out development within view of any waterway or adjacent to any main road, railway, or public reserve, the Council shall take into consideration the probable aesthetic appearance of the development when used for the proposed purpose and viewed from such waterway, main road, railway, or public reserve;
(b) to carry out development for the purpose of any extractive industry or mine, the Council shall take into consideration the advisability of imposing conditions to secure the reinstatement of the land, the removal of waste material or refuse, and securing of public safety and amenity of the neighbourhood;
.....
(e) to carry out development for the purposes of an industry, commercial premises or a residential flat building, the Council shall take into consideration whether adequate space, sufficient to provide for the parking or standing of such number of vehicles as the Council may determine having regard to the purposes of the development, has been provided on the site or on land adjoining the site not being a public road;
15. Development for the purpose of an extractive industry or a transport terminal shall not be carried out on any land within Zone No. 1 (b), unless -
(a) the distance between the land and the nearest alignment of a main road or an arterial road is more than 90 metres; and
(b) there is no direct access from that land to a main road or an arterial road."
Both sections of the subject site are proposed to be zoned Rural l(al) - Agricultural Protection under the Draft Bellingen Local Environmental Plan 1987 (draft LEP) certified for exhibition pursuant to section 65 of the EPA Act. Extractive industries are permissible with consent pursuant to the Table to clause 9 of the draft LEP.
Relevant provisions of the draft Plan concern development with frontage to a main road, upon flood prone land and in the vicinity of streams, (clauses 29, 30 and 34).
The subject land is also within the area to which the North Coast Regional Environmental Plan 1988, (the REP) gazetted on 18 December 1987, applies. In so far as the REP specifies regional policies for the control of development in the region, clauses l2 and 18 apply to the impact of development on agricultural activities and development control for extractive industry.
Background to the Application
In December 1980, a flood plain management study for the Bellingen Valley was published. An overall flood plain management plan was proposed, the objectives of which included:-
"l. The prevention of further development in floodway areas and the gradual clearing of existing development from such areas, particularly from areas threatened by bank erosion.
4. Control of the erosive character of the river, where practicable, to constrain the potential for damage."
The recommended structural measures included the following:-
"The North and South Arms of the Bellinger river and many of their tributaries are very active in terms of bank erosion. Farmland, access road, residential areas and communication links are being threatened by erosion of the banks. The consequent formation of sand bars and shoals in the lower reaches is restricting the flood capacity of the channels and impeding recreational and other uses of the river.....
A preliminary analysis has clearly indicated that a morphological study of the river system would be justified by the benefits that would flow from implementation of its findings. Such a study should be undertaken of the river system as a whole and should be directed towards formulation of an erosion control plan for the valley and stipulation of constraints for development near the river banks."
The Public Works Department undertook the Lower Bellinger Waterway Study, and published its report in February 1983. Its conclusions and specifically related content concerning the erosion and protection areas near Raleigh are as follows:-
"4.4.2 Mylestom to Raleigh
23 The shoal development at Raleigh is due to diverging flood flows downstream of the Pacific Highway bridge. Dredging of this shoal will not adversely affect the flow regime of the river and may alleviate existing bank erosion adjacent to the shoal area. It will increase the waterway's amenity (enlarging the area available to water skiers) as well as supply to the local building industry a high quality product which is too scarce a resource to be used as fill (Ref. Section l2.6).
The bend between Raleigh and Repton is moving northwards at a rate of 0.4 m per year, despite the presence of rock protection (Ref. Section 10.2).
12.6.2.4 Raleigh Shoal
The shoal opposite the Norco Factory at Raleigh is entirely fluvial in origin and its development is linked with flood flows diverging after passing the Pacific Highway bridge. This shoal can be dredged without adversely affecting the fluvial shoaling processes of the river.
The shoal in this reach of the river tends to train tidal flows, which aggravate the flood related bank erosion in the area. Dredging this shoal would marginally improve bank stability, particularly on the western bank adjacent to the Pacific Highway."
Thereafter, on 1 June 1985, the Department of Lands invited tenders from interested persons or companies for the issue of a quarry licence over the Raleigh Shoal.
The subject Application
A tender submitted on 4 July 1985 by John Allen & Associates Pty. Limited, Consultants acting for the applicant, was accepted by the Department which granted consent on 14 November 1986 for lodgment of the final Environmental Impact Statement (EIS) and Development Application with the Council, as already undertaken by the applicant on 22 October 1986 as D.A. No. 1724.
According to the EIS the development is to be divided into two stages. Stage l includes dredging from the Shoal and the pumping of sand to the stockpile area where it will be screened to remove oversize material. After dewatering the sand will be stockpiled and a siltation tank and settling lagoon will remove effluent which, when clarified, will be returned to the river. This stage will also include access and service roads as well as access to the Pacific Highway. Prior to processing the landscaping and vegetation screening will be planted.
Stage 2 will involve the installation of classifiers to remove charcoal, a second density or washing tank, 2 more cyclones and the development of a freshwater supply. Two additional stockpiles are proposed to be established.
Figure 7(a) from the EIS is attached hereto to illustrate the proposed processing plant and access layout. The application proposes the dredging, processing and sale of up to 905,000m3 of high quality sand.
The proposal was advertised in accordance with section 84 of the EPA Act from 13 November 1986 to 12 December 1986 and later extended to 12 February 1987, reference being made to the dredging, processing and transportation of sand from Raleigh Shoal for use in the Coffs Harbour region. Submissions were received both for and against the proposed development. The subject appeal was filed with the Court on 8 May 1987 against the deemed refusal of consent by the Council.
Council's Chief Town Planner reported to Council on 15 December 1987 summarising the objections and responses to the EIS, including those received from relevant government authorities. Reports by Council's officers were also considered by the Council concerning a variety of issues. All the relevant section 90 considerations were addressed.
Although the Planner recommended that consent be granted subject to conditions, the Council resolved on 15 December 1987 as follows:-
"l. That the applicant be requested to submit an alternative proposal in which the processing plant is located on the Eastern side of the Bellinger River with access to the Pacific Highway near the Raleigh Bridge;
2. That the Lands Department in conjunction with the Public Works Department be requested to furnish an evaluation report on all the potential dredging sites on the Bellinger and Kalang Rivers and to inform Council as to why it chose the Raleigh Shoal as the first location for sand extraction and dredging; and
3. That any alternative proposal submitted by the applicant be listed for consideration by Council at its first Meeting in February, 1988."
Thereafter on 2 February 1988 Council refused development consent for the reasons contained in its Notice of Determination dated 9 February l988, reference being made to the relevant subsections of section 90, EPA Act:-
"l. Sec. 90(l)(b) - the processing site will have an unsatisfactory impact on the environment;
2. Sec. 90(l)(c) - the detrimental effect of the processing plant on the landscape or scenic quality of the locality;
3. Sec. 90(l)(e) - the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of the processing plant on the subject land;
4. Sec. 90(l)(f) - the size and shape of the land to which the processing plant relates, the siting of any building or works thereon and the area to be occupied by that development is unsatisfactory;
5. Sec. 90(l)(g) - the land to which the processing plant relates is unsuitable for that development by reason of its being subject to flooding;
6. Sec. 90(l)(i) - the proposed means of entrance to and exit from the processing plant and the land to which that development relates are inadequate;
7. Sec. 90(l)(j) - the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system is unsatisfactory;
8. Sec. 90(l)(r) - the processing plant is not in the public interest.
The Court was also informed that in resolving to refuse consent, the Council invited the applicant to submit a further application incorporating another processing site because the Council generally favours dredging of the Bellinger River.
The Hearing
Evidence was given on behalf of the Council by the following:-
Expert witnesses
Mr. G.H. Smyth, Chief Town Planner, Council.
Mr. G.C. Williams, Engineer, Department of Public Works.
Mr. R.D. Medhurst, Shire Engineer.
Mr. P.A. Crosby, Design Engineer, Department of Main Roads.
Sgt. B.W. Morris, Police - Acting Traffic Commander, Lismore.
Objectors
Mr. P.F. May, Oyster Grower.
Mr. H.C. Henke, Vigneron.
Mr. R.T.C. Green, Grazier.
Mr. R.W. Parks, Teacher and grazier.
Mr. T.J. Pike, Planning Consultant.
Mr. N. McCabe, Birdwatcher.
Mr. R. Anderson, Farmer and Secretary, Raleigh Drainage Union.
Evidence was given on behalf of the applicant by the following:-
Expert witnesses
Mr. J.N. Allen, Consultant Engineer and Town Planner.
Mr. S.N. Webb, Consultant Civil Engineer.
Mr. P.S. Prince, Consultant Traffic Engineer.
Mr. N.G. Holmes, Consultant Ornithologist.
The proceedings were commenced in Sydney on 15 February 1988, with a view of the site and its locality being undertaken by and the Court on 18 February, the hearing continuing thereafter that day and on 19 February, at Bellingen, followed by final addresses in Sydney on 1 March l988.
On 16 February 1988, the Council tendered Exhibit Z being draft conditions in the event of the Court granting consent. These were revised on l March l988. By that stage, after considering the evidence and submissions of the parties and with the benefit of an inspection, the Court indicated that it was disposed to grant development consent subject to conditions.
The Court's reasons for reaching that conclusion are related to three principal issues which emerged from the EIS, the responses to it, and the evidence presented to the Court.
Firstly, the possible adverse effects of dredging the Raleigh Shoal in respect of:-
(a) bank and bed stability, including road and bridge works;
(b) birdlife; and
(c)the oyster industry, should the dredge accidentally introduce the Pacific oyster to the Bellinger River, or otherwise damage the oyster leases.
Secondly, the possible adverse effects upon traffic safety of the proposed location of access from the site to the Pacific Highway at an offset from the existing intersection of Mylestom Road and the Highway.
Thirdly, the possible adverse effects in times of flood of residual material from stockpiles being deposited on adjacent agricultural land and in drains adjoining the site.
The first issue appears to have been resolved mainly in view of the advice of the Public Works Department on 17 September 1987 which intimated to the Council that the Department had no objection to the proposed extraction of sand by dredging subject to conditions which include the following:-
"3. This approval covers Stage I only. Following upon the completion, or near completion, of Stage I the Regional Engineer, Public Works Department, will review the operation to date and determine whether Stage II will be approved and, if so, set the maximum depth of dredging and any additional conditions that may be necessary.
4. The approval for Stage I will be for an initial period of two (2) years, commencing on the date of granting development consent. Subsequent approvals would be subject to the company meeting all conditions of the permit.
CONDUCT OF OPERATION
5. (a)The area of excavation will be between chainages 2,125 metres and 3,255 metres.
(b) No material shall be removed from the river within a strip 30 metres wide measured from a line approximately Local Mean High Water Mark as determined by the Regional Engineer, Public Works Department, Coffs Harbour, or from a strip 30 metres wide measured from the face of any retaining wall, wharf, beacon pile, or either side of a submarine crossing.
(c) No excavation shall be carried out below a gradient line of one vertical to six horizontal drawn from the set-back lines of 5(b) above.
(d) The maximum depth of excavation shall be limited as in (c) above, and, in addition, in no case shall the maximum depth for Stage 1 be more than 2.9 metres below Australian Height Datum (A.H.D.). The dredged profiles are to be evenly graded, with no isolated deep holes.
6. The dredging sequence shall be as described in the Environmental Impact Statement for Stage I.
ESTABLISHMENT OF BEACH
7. The proponent shall establish and maintain, for the life of the dredging operation, a beach, composed of clean, coarse sand, to the dimensions shown in the sketch below. The beach shall extend from chainages l,885 metres to 3,255 metres on the western (left) bank and from chainages 2,375 metres to 2,825 metres on the eastern (right) bank.
8. Beaches may be required at other locations if, in the opinion of the Regional Engineer Public Works Department, erosion is occurring either directly or indirectly as a result of the dredging.
9. The beach on the right bank shall be fully established within two (2) years of the commencement of the dredging operation and the beach on the left bank shall be fully established once dredging encroaches within 100 metres of the left bank."
The effect of Condition 5(a) above is to remove from the proposed extent of dredging both the area of about lkm in length approaching Repton to the north-east of the existing oyster lease, which is situated opposite the intersection of the Pacific Highway and Mylestom Drive, and the area of some 300m in length at the southern end approaching the Raleigh Highway bridge. The applicant accepts this restriction.
After considering the evidence of Mr. McCabe, a local birdwatcher, and Mr. N.G. Holmes, Ornithologist, I have not been persuaded that the Raleigh Shoal is of sufficient importance for use by local and migrating birds to conclude that dredging of the Shoal would significantly harm the availability of their habitat and food supplies in the locality of the site. As a feeding area, the Shoal is only exposed at the very lowest tides; otherwise only the larger wading birds can use it, being covered by water most of the time. Even when used the Shoal is more likely to be a last resort for sustenance or shelter, having regard to adjoining land and water uses and the tidal conditions.
The possible adverse effects of dredging on the oyster industry were discussed by the Regional Director of Agriculture in his advice of 28 January 1987, to the Council in the following terms:-
"The Division of Fisheries has reviewed the E.I.S. and commends Travers Morgan on the very detailed examination of issues of concern to the Division of Fisheries. The Department raises no environmental objections to the dredging proposal provided that procedures outlined in the E.I.S. are adhered to and that appropriate approvals are given by relative authorities such as the Department of Public Works and the State Pollution Control Commission.
The Department of Agriculture is aware of the concerns expressed by the Bellinger River Oyster Growers Association and would make the following points:-
a. Direct Structural Damage of Leases
As a condition of approval for this type of proposal the Division of Fisheries prohibits any dredging or reclamation within 40 metres of oyster leases. As well the perimeter of the dredge area must be battered to ensure that the lease area will not be subject to subsidence, erosion etc. If investigations by responsible authorities establish that operations carried out during dredging or reclamation have adversely affected oyster leases, the proponent would be required to cease the dredging activity and may be required to pay compensation.
b. Affects of Siltation
This matter has been addressed in the Environmental Impact Statement which should prevent any detrimental affects on oyster leases in the area. The design and monitoring of discharged water from the settlement pond area will need to comply with requirements of the Clean Water's Act, 1970.
c. The Introduction of the Pacific Oyster
Although improbable that the pacific oyster would be introduced to the estuary on dredge equipment, a condition of development consent might be that the dredge be inspected and decontaminated of all oyster material under the supervision of the Division of Fisheries before any dredging operation be allowed to commence.
d. Alteration of Tidal Flow
The removal of the shoal may result in slight increase in saltwater in exchange in the section of the river but it should not detrimentally affect the leases. Earlier studies by the Department of Public Works indicate that dredging of the Raleigh Shoal in a controlled manner will not adversely affect the hydraulic characteristic of the river.
Generally the Division of Fisheries is satisfied that the development as proposed does not pose a serious threat to fishery or oyster resources of the Bellinger River."
These matters are catered for in the proposed conditions of consent.
I should add that the oral evidence adduced at the hearing would not lead me to any conclusion to the contrary of the advice from the Department of Agriculture set out above.
The second issue has been resolved as a consequence of the applicant deciding, at the conclusion of evidence, not to submit an amended development application to provide for relocation of access from the site to the Pacific Highway some 50m north of that shown in the Development Application to form a cross intersection with the Mylestom Road intersection. Although such relocation would require additional site area to that shown on the plan for the subject application, at the request of the applicant and without objection by the Council, all relevant evidence was examined with that option in mind. However, it is now unnecessary to address that evidence.
The necessity to consider such an amendment arose from discussions between the parties and the Department of Main Roads in February l988, when two solutions for access to the Pacific Highway were considered:-
(i) Upgrade the Valery Road intersection, including the widening of the existing culvert for the main drain from beside Valery Road, beneath the Highway, to the Bellinger River; or
(ii) Shift the proposed access road location to form crossroads opposite Mylestom Road, as referred to earlier.
On 5 February 1988 the Divisional Engineer of the Department of Main Roads advised the Council as follows:-
"The Department's preferred location for the access to the development is via the existing public road, Valery Road.
As an alternative arrangement the Department would agree in principle to a new access road being constructed from the Pacific Highway, located generally opposite the Mylestom Road intersection. This is similar to Proposal No 1 submitted by the developer, however the new access road and/or Mylestom Road would have to be relocated to be square to the Highway and opposite each other. There is no requirement for a deceleration lane for northbound traffic turning left into the new access road."
And further, on 15 February 1988:-
"Council's Engineer, Mr Medhurst has requested clarification of the Department's comments in the third paragraph of that letter. The clarification is as follows:-
As an alternative arrangement the Department would agree in principle to a new access road being constructed from the Pacific Highway, located opposite the Mylestom Road intersection. This is similar to Proposal No 1 submitted by the developer, however the new access road would have to be relocated to be square to the Highway and opposite Mylestom Road. There is no requirement for a deceleration lane for northbound traffic turning left into the new access road.
The intersection of the access road and the Pacific Highway should be improved to the standard shown as Example 4 for 100 km/hr travel speed in Figure 4.20(b) in NAASRA publication "Interim Guide for the Design of Intersections at Grade", suitably modified to retain the existing sheltered right-turn storage and left turn deceleration lanes for traffic turning into Mylestom Road."
I have concluded after considering the evidence and submissions of both parties in relation to the matter of road access, that the slightly offset access intersection proposed in the EIS is unsatisfactory. In my opinion the most reasonable solution in the circumstances of these proceedings is that access to the Pacific Highway from the site be achieved by amendment of the site layout plan so that the driveway ingress and egress is provided on the Valery Road frontage to the reasonable satisfaction of the Shire Engineer, a matter considered suitable for inclusion in the conditions of consent. The preponderance of the evidence, which I accept, is against permitting a new point of access to the Pacific Highway, particularly that proposed in the EIS.
In the latter circumstance the potential issue of an objection under State Environmental Planning Policy No. l in respect of the provisions of clause 15 of the IDO does not arise, as such driveway access to Valery Road would be located more than 90m from the Pacific Highway.
The third issue arose from the concerns of nearby landowners and the Raleigh Drainage Union because the plant site is in the path of overland floodwaters as shown on the diagram, Fig. 4.8. However, the weight of evidence by both Mr. Williams, Civil Engineer and Mr. Allen, Consultant Engineer and Town Planner, is such that the Court has not been persuaded that the relatively low velocity of flood flows is likely to either drag or lift sufficient sand grains from the stockpiles and deposit them over a long distance such that they would have an adverse effect upon nearby pastures or associated drainage.
I have taken account of all of the objections and representations made to the EIS and the oral evidence of objectors called in the proceedings. In so doing all of the impacts of the development on the environment have been considered. As a result I am satisfied that consent should be granted subject to conditions.
Outstanding issues - Conditions of Consent
The applicant submits that the following proposed conditions are unreasonable and ought not be imposed in the form submitted by the Council:-
Condition 3 - Valery Road Access
The construction of a new access road within the Highway Reserve is prohibited and access to the development shall be restricted to the Valery Road intersection which shall be constructed prior to commencement of dredging, at no cost to Council to the Department of Main Road's standard for a Type 4 intersection and in accordance with Council's "Specifications for Engineering Works Associated with Subdivision". Plans and specifications to be submitted to and approved by the Department of Main Roads and Council prior to commencement of work.
Condition 24 - Bond
The developer shall for itself its heirs successors and assigns duly perform and observe the conditions imposed herein and shall indemnify and keep indemnified the Council against any and all liability arising from its failure to comply in whole or part with any condition herein expressed or implied AND for such purpose shall lodge with the Council a Bond in such form as Council may approve together with a guarantee thereof in a form acceptable to Council from a financial institution in the sum of $100,000 which said sum encompasses the following matters -
- The continued compliance with the requirements of the Maritime Services Board.
- Restoration and restitution arising from damage to oyster leases.
- Non-compliance with dust conditions.
- Removal of dredge and associated equipment from public boat ramp or reserve.
-Failure to decontaminate any dredge.
- Clearing of any drains blocked as a result of the operation.
- Failure to restore any damage to the effluent lagoon or stockpile retaining structures caused by floods or other factors.
- Failure to construct a clean water dam for stage 2 of the development.
- Construction and maintenance of further stockpile retaining structures around the stockpiled material if show necessary during the course of the operation.
-Damage resulting from materials deposited or introduced to adjoining properties including saline contamination and all removal and restoration necessary.
-Establishment and maintenance of landscaping of the site.
- Rehabilitation of the site.
Conditions 17 and 21 - Retaining of main stockpiles
Condition 17
All retaining walls shall be constructed to a level not less than the 1 in 100 year flood levels.
Condition 21
All stockpiles on the site shall be stored in bins, earth retained walls or otherwise suitably surrounded on not less than 3 sides and shall be so located as to provide maximum protection from wash and flood waters. The walls shall be constructed at a level not less than the 1 in 100 year flood level. The location, design and construction of the retaining structures shall be approved by and to the satisfaction of the Shire Engineer.
It is the submission of the applicant that Condition 3 is unreasonable in view of the evidence of Mr. Prince and Mr. Allen concerning the potential cost of the intersection and culvert and the likely direction of travel of trucks, generated by the proposed development, to the north of the culvert to meet market needs in the Coffs Harbour district, rather than to the south across the culvert towards Urunga, Kempsey and Nambucca.
On behalf of the Council it is submitted that not only the evidence of the Department of Main Roads, supported by the Shire Engineer, but also that of Mr. Prince, Consultant Traffic Engineer, supports the design of the Valery Road intersection with the Pacific Highway to a type 4 standard in view of the potential traffic generation by the proposed development.
After considering the evidence relating the proposed development's transport arrangements to the road and traffic conditions in the locality, the Court is satisfied that nothing less than a type 4 intersection will be suitable for the Valery Road intersection. Further, after taking into account the volume of sand proposed to be removed and the likely extensive period of time for the operation and the processing activities, (up to 20 years), I do not believe that it would be unreasonable to require inclusion of the culvert in the intersection construction works at no cost to the Council. That total cost may be in the order of $150-200,000, of which the culvert modification may cost around 40%, based upon the evidence of Messrs. Allen and Prince.
Whilst the users of Valery Road will benefit from the upgrading they will no doubt suffer some inconvenience as a result of the effects of the development on the environment including sand trucks. Further, it is unlikely that upgrading works to the culvert would have occurred for some considerable time.
Similarly, I have not been persuaded that the guarantee of $100,000 is unreasonable in the circumstances of the case, as clearly reflected in the details referred to in that condition. The fact that other authorities' approvals may also include bonds has no real bearing on the circumstances of the guarantee required pursuant to Condition 24 which involves separate Council related issues. In the light of the evidence I do not regard the sum of $100,000 as an unreasonable one, particularly bearing in mind the likely time-span of development.
In view of the conclusions as to the likely minimal effect of flood flows passing over or around the main sand stockpiles, it has not been shown to be necessary to require additional retaining walls to be constructed around those stockpiles as proposed by the Council in the Conditions. However, it is considered to be reasonable for the settling pond retaining walls and bins for selected materials to be built as specified in Condition 17 and the Condition (now renumbered 16) will be amended to clarify that intention.
It follows that conditional consent should be granted to the proposed development.
Accordingly, I order that:-
l. The appeal be upheld.
2.Development Application No. 1724 by Lopiglow Pty. Limited for the dredging of sand from the Raleigh Shoal in the Bellinger River and its transport and subsequent processing for commercial purposes upon land known as Lot 3, D.P. 740565, with frontage to both Valery Road and the Pacific Highway, Raleigh, be granted development consent subject to the conditions listed in Schedule 'A' attached hereto.
3. The exhibits may be returned.
4. Costs reserved.
Associate
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