M & R Civil Pty Ltd v Hornsby Shire Council

[2003] NSWLEC 437

>

Land and Environment Court

of New South Wales

CITATION:	M & R Civil Pty Ltd v Hornsby Shire Council [2003] NSWLEC 437
PARTIES:	APPLICANT M & R Civil Pty Ltd RESPONDENT Hornsby Shire Council .
FILE NUMBER(S):	(1)0381 of 2002
CORAM:	Roseth SC - Moore C
KEY ISSUES:	Development Application :- SEPP 5 development Fitting into rural landscape Quality of stormwater discharge - impact on Blue Gum High Forest .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 hreatened Species Conservation Act 1995 State Environmental Planning Policy 5 - Housing for Older People and People with a Disability Hornsby Shire Local Environmental Plan 1994 . Rural Lands Development Control Plan Sustainable Water Development Control Plan .
CASES CITED:	Momentum Architects Pty Ltd v Hornsby Shire Council NSWLEC (unreported) December 2002; .
DATES OF HEARING:	20 to 23, 29 and 30 January 2003
DATE OF JUDGMENT:	02/11/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Officer QC SOLICITORS Maddocks RESPONDENT Mr A Galasso, barrister SOLICITOR Mr I Woodward Hornsby Shire Council

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0381 of 2002

Roseth SC
Moore C

11 February 2001

M & R Civil Pty Ltd

Applicant

v

Hornsby Shire Council

Respondent

Introduction

1. This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application to erect 130 dwellings and associated community facilities for older people and people with a disability on lot 5 DP 507947 and lot E DP 4129836, known as 599-601 Old Northern Road, Glenhaven.

The site

2. The site is on the Hornsby (east) side of Old Northern Road. Its shape is irregular. Its frontage is 302m, while its area is 4.14 ha. It slopes gently from the road towards the northeast. A watercourse flows across it from north to south. It was once used as market gardens and now accommodates three houses. Several horses graze on it. It supports about 200 trees of which the most significant ones are near the watercourse. The trees belong to the Blue Gum High Forest (BGHF) ecological community.

3. There is vehicular entry from Old Northern Road to both allotments. A strip of land along the frontage has been reserved for road widening, though the Road and Traffic Authority of NSW (the RTA) has not yet acquired all of it. Along this strip is a row of Monterey pines that partly screen the site from view.

4. The site is within the Berowra Creek-Hawkesbury River catchment. It, along with the Hornsby side of Old Northern Road, is zoned and used as rural. The surrounding land has a rural appearance, though there are some prominent developments on it, notably the nearby nursery Flower Power.

5. The Baulkham Hills (west) side of the road is zoned residential. It contains several large two-storey houses with little landscaping to soften their appearance. There are also older, smaller houses on the west side, including one that is heritage-listed.

Relevant planning policies and instruments

6. The Hornsby Shire Local Environmental Plan 1994 (LEP 94) zones the site Rural BA (Small Holdings, Agricultural Landscapes). The zone objectives require, among other things, the promotion of agricultural use and the maintenance of rural character.

7. The application is made under State Environmental Planning Policy 5 – Housing for Older People and People with a Disability (SEPP 5). This Policy allows medium-density housing in rural zones for older people and people with a disability, provided the site is adjacent to urban zoning. The Policy overrides other planning controls that are inconsistent with it. It is common ground that the proposal is permissible on the site.

8. The Threatened Species Conservation Act 1995 (the TSC Act) contains Schedule 1, which lists threatened species and endangered ecological communities.

9. Rural Lands Development Control Plan (the Rural DCP) has the primary purpose “to provide planning strategies and controls for development within the rural area, based on the findings of the Rural Lands Study”. The objectives of the DCP include the enhancement of established rural character. The Rural Lands Study sets down principles for development in rural zones.

10. The Sustainable Water Development Control Plan (the Sustainable Water DCP) deals with the treatment of water throughout the Shire. The Berowra Creek Catchment Stormwater Management Plan (the Berowra Plan) sets objectives and guidelines for the discharge of stormwater.

11. In 1997 the NSW Environment Protection Authority (the EPA) published a document Managing Urban Stormwater – Treatment Techniques. This deals with, among other things, the size and design of wetlands for water quality treatment. In 1998 the Department of Land and Water Conservation (the DLWC) published a document titled Constructed Wetlands Manual Volume 2. This provides information on the relationship of the size of constructed wetlands and the removal of pollutants.

The proposal and its history

12. The applicant proposes to demolish the existing structures on the site and to construct a retirement village comprising 130 dwellings with associated community building and parking. The community building contains a swimming pool, gym, games room, meeting rooms, lounge and dining room, kitchen and library. Each dwelling has a lounge, kitchen, two bedrooms, two bathrooms and private open space.

13. The dwellings are in attached two-storey buildings. The vehicular circulation is based on a peripheral road with “fingers” extending to serve the rows of buildings. The design makes use of the fall of the site, so that the top dwellings are approached from the high side while the bottom dwellings are approached from the low side.

14. The applicant lodged the development application in April 2002. Following notification, the council received eight objections. None of the objectors gave evidence at the hearing. In August 2002 the council considered a planning report by its staff that recommended refusal. It accepted the recommendation and refused the application. The applicant lodged the appeal in July 2002 against deemed refusal.

The issues

15. The council submitted a Statement of Issues containing 30 issues that were divided into numerous sub-issues. Several issues were resolved as a result of conferences between the experts. The following issues remained for the hearing:

• Is the proposal’s visual impact on the streetscape and the rural character of the surrounding area acceptable?
• Is the quality of the stormwater discharge acceptable?
• Is the impact on the Blue Gum High Forest acceptable?
• Does the loss of agricultural land justify refusal?
• Are the arrangements for water and sewer satisfactory?

Rural character and streetscape

16. Without doubt this was the major issue in the case. LEP 94, the Rural DCP and the Rural Lands Study contain objectives and principles relating to the Shire’s rural areas. These may be summed up as the maintenance of rural character. SEPP 5, under which this application is made, permits medium density housing on rural land that adjoins urban development, provided the occupants are old or disabled people. Thus, while the local controls permit two or three dwellings on this site, SEPP 5 permits about 150 dwellings. We do not think therefore that it is valid to criticise a proposal under SEPP 5 on the basis that it is not rural in character. If it had only half as many dwellings as it does, it would still not appear rural.

17. Having said this, we believe that housing, even at medium densities, within a rural area should acknowledge its location and have a different design and appearance from housing in a residential area. The issue is made more complex by the fact that SEPP 5 is drafted mainly for the assessment of housing in residential areas. Clause 25, which deals with the design of residential development, fails even to mention the word rural. While it contains numerous guidelines and principles for fitting into residential areas, it says nothing about designing medium density housing in a rural environment.

18. Although SEPP 5 provides no guidance, s79C(b) of the Environmental Planning and Assessment Act 1979 requires us to have regard to the proposal’s impact on the natural and built environment. The visual impact on the rural environment is therefore a matter that we must consider in the assessment of this application.

19. The witnesses in the council’s case were Dr R Lamb, an expert on visual analysis, and Mr B Newbold, a planner and urban designer. The experts in the applicant’s case were Mr I Glendinning, a planner, Mr P Castor, an arborist, Mr C Lorimer, a landscape architect, and Mr R Paisler, an architect and the project’s designer.

20. Dr Lamb’s and Mr Newbold’s major criticism of the proposal was that it does not fit into its rural surroundings. According to Dr Lamb, the principal reason for the misfit is the formality of the design. The zone objective in the LEP "to maintain rural character" applies notwithstanding the fact that the application is lodged under SEPP 5. There is not enough variety of design. To fit the rural character, the proposal should be in the form of clusters, ie small groups of buildings surrounded by landscape. The section of the site north of the detention pond was an example of the kind of design Dr Lamb considered acceptable.

21. Mr Newbold supported Dr Lamb’s evidence. His main criticism related to the view of the proposal from Old Northern Road. He noted that the pines within the road widening are likely to be cut down and cease to provide screening. He doubted that the 3m wide strip of land between the future site boundary and the peripheral road was sufficiently wide to grow screening vegetation. In his opinion, the length of buildings was excessive and the view from the road too urban.

22. Mr Castor, Mr Paisler and Mr Lorimer took issue. Mr Castor said that the strip along the front was adequate for planting. Mr Lorimer supported this view. Mr Paisler pointed out that the buildings near the road were about 40m in length and appeared single-storey from the road. The gaps between the buildings were 15-20m in width and could support significant planting. The buildings did not therefore appear as continuous.

23. In our opinion, the proposal achieves compatibility with the rural area around it. First and foremost, it will be screened or filtered by vegetation that extends around all sides. The buildings facing the road are single-storey, and about the same length as the visually dominant two-storey houses that line a portion of the western side of the road. There are sizeable gaps through the proposed buildings and these give views of the rural lands beyond. While Mr Newbold is right in saying that these views would not be apparent to someone driving past, pedestrians would enjoy them.

24. We have considered Dr Lamb’s and Mr Newbold’s suggestion that the appropriate form of SEPP 5 development in rural land is cluster housing. Neither of them pointed us to an example of SEPP 5 development in a rural context that they consider acceptable. Dr Lamb said that the only part of the subject development that he found acceptable was that north of the detention pond. This section of the site has an area of about 0.6 ha. Eight dwellings are proposed on it with a total floor space of about 750m2, thus producing a Floor Space Ratio (FSR) of 0.125:1. (The FSR of the total proposal is about 0.43:1.) SEPP 5 states that where a proposal’s FSR is equal to or less than 0.5:1, density and scale cannot be used as reasons for refusal. It seems to us that Dr Lamb is unrealistic when he points to a portion of the site with a density of only one-quarter of 0.5:1, as the only acceptable example.

25. In our opinion, the proposal, while itself not rural in character, is compatible with the rural surrounding.

Quality of stormwater discharge

26. A watercourse flows across the property from north to south. A remnant stand of BGHF grows along the sides of this watercourse. BGHF is listed as an endangered ecological community in Part 3 of Schedule 1 of the TSC Act.

27. The applicant proposes to discharge the stormwater accumulating on the site into the watercourse after it is treated through a detention pond under the car park. Here suspended solids will settle. The stormwater will then pass through an outdoor treatment pond densely planted with macrophyte reeds across its whole surface area. The treatment pond is designed to remove nutrients such as phosphorus and nitrogen from the water before it discharges to the watercourse.

28. The initial stormwater design located the point of discharge where the stream crossed the site’s northern boundary. With this location the stormwater discharge impacted on the BGHF on the site. Mr R Lembit, the council's consultant on threatened species, concluded that the impact would not be adverse, provided the nutrient load does not exceed that existing and issues were resolved concerning the extent of additional run-off and the duration of soil saturation following rainfall.

29. Following advice by Mr Castor, the applicant re-located the point of discharge in order to reduce the impact on existing trees of the BGHF community. The new discharge point is at the south end of the watercourse as it traverses the site. The consequence of this is that the discharge will not impact on the stand of BGHF on the site. However, across the site boundary, there is a continuation of the BGHF on the neighbouring property. An aerial photograph shows another stand further downstream.

30. The council raised two significant issues concerning stormwater quality: First, whether the applicant should be required to improve the current quality of discharge. In the council’s submission, the quality of discharge after development should be higher than it was before development. The applicant contends that this is an unreasonable requirement. It has set itself a target of maintaining the pre-development quality.

31. The second issue was whether the stormwater treatment system that Mr M Taylor, the applicant’s civil engineer, designed will achieve the target of maintaining the pre-development quality after development. It is common ground that the system will deal satisfactorily with suspended solids and phosphorus. However, Dr D Martens, an environmental engineer who gave evidence in the council’s case, told the Court that the treatment pond would not remove sufficient nitrogen to maintain existing quality.

32. On 14 April 1998 the Council adopted the Sustainable Water DCP. The DCP contains several objectives with commentary. The two relevant objectives are:

• For the community and other stakeholders to adopt sustainable water practices;
• For the community and other stakeholders to adopt practices to improve water quality.

33. Under the first of these objectives, the commentary provides examples of sustainable water practices. One example is:

Adoption of appropriate development forms and standards through the use of current best management practices to reduce the quantity and improve quality of run-off.

34. Under the second objective, the commentary includes the following:

All new development and re-development in the Shire should ensure of a minimum practical net increase in an adverse materials such as sediments, nutrients, bacteria and rubbish to local watercourses and receiving waters, both during construction and post-development

35. Under the heading "How does this DCP work", the Sustainable Water DCP states:

This DCP has a strategy element and control elements. The strategy element incorporates Council's actions to achieve sustainable water practices; and .
Control elements are those elements applicable to development and comprise element objectives, performance criteria, prescriptive measures.

36. Under the heading "Element: watercourses", the Sustainable Water DCP provides the objective:

To protect and enhance existing watercourses, improve water quality and promote sustainable water practices.

37. The Sustainable Water DCP then sets out a number of interpretive matters. It is common ground that the site comprises lands which are level 1, level 2 and level 3 according to the interpretive elements, thus triggering prescriptive measures at all three levels. However, none of these prescriptive measures includes quantitative limits on suspended solids, phosphorus or nitrogen. Nor is there any quantitative requirement for net impact on the receiving waters.

38. The Sustainable Water DCP sets out several performance criteria, of which the relevant one is:

Drainage works should include measures to improve water quality and minimise the impact of stormwater discharge on natural vegetation and watercourses.

39. In December 1999 the council published the Berowra Plan. The aim of the plan is described as being to improve the management of stormwater within the Berowra catchment to sustain the agreed catchment values. The watercourse passing through the site is an upstream tributary of Berowra Creek.

40. The Berowra Plan records that the council has undertaken to install and upgrade treatment measures to improve water quality in this catchment. The Plan also identifies the various points and diffuse sources of pollution in the Berowra Creek catchment. Urban development and rural redevelopment are listed as diffuse sources of pollution. The Plan then sets out a variety of stormwater management of objectives, the relevant one of which reads:

4. Reduce and control diffuse pollution (includes existing & new urban, rural/agricultural & degraded sites)

41. The Plan cross-references this objective to Annexures 2 and 4. Annexure 2 is entitled Strategy Implementation and contains three schedules dealing with measures proposed to deal with the earlier objectives. The matters dealing with objective 4(b) Reduction of pollution from new urban developments are set out between Action number and direction 79 and Action number and direction 87. Action number and direction 85 would appear to be the one immediately applicable to the subject development. It reads:

ensure integrated planning to ensure water quality objectives are met .

42. Against this, under the heading Activities undertaken (short-term) or planned (longer-term), for the Council, the following are set out:

• Strategy to pursue water sensitive urban design
• Sustainable Water DCP
• Minimal net impact of pollutants from developing sites
• Permanent water quality devices installed on large developments.

43. The Berowra Plan also includes Annexure 4, entitled Detailed urban development objectives. Its contents are divided between Construction activities and Post development objectives. When dealing with construction activities, Annexure 4 refers to objectives 4(a) Reduce pollution from existing urban areas and 4(b) Reduce pollution from new urban development in Annexure 2. However, under the heading Post development objectives, Annexure 4 does not refer to 4(b) Reduce pollution from new urban development. Thus, post construction, Annexure 4 is not expressed to apply to objective 4(b) Reduce pollution from new urban development.

44. What is the implication of the above documents to the appeal before us? The first matter we need to address is the apparent conflict between the commentary on the first and second objectives of the Sustainable Water DCP, set out above. The only interpretation of the phrase improve quality of run-off that is consistent with the concept of minimum practical net increase in an adverse materials is that improvement in quality in this context means that the discharge is better than it would have been in the absence of any treatment regime. The council’s advocate, Mr A Galasso, submitted that we should adopt an interpretation of the first provision to mean requiring an improvement in quality of the receiving waters so that, after receipt of the run-off, the quality of the receiving waters would be better than before. Such an interpretation imposes an inconsistency, as Dr Martens conceded in his evidence. We are not prepared to accept an inconsistency where a consistent interpretation is available. It follows that the authors of the Sustainable Water DCP accept that there may be a net increase in nutrients being discharged to local watercourses post development.

45. While Dr Martens’ suggestion that stormwater quality should be higher after development than it was before is laudable, we cannot find support for it in either the Sustainable Water DCP or Berowra Plan. We accept the applicant’s submission that the target should be no increase in pollutants after development.

46. As mentioned before, the issue between Dr Martens and Mr Taylor related only to the removal of nitrogen from the stormwater. It was common ground that to achieve the target of no-post-development-increase, the required reduction of nitrogen was in the order of 59%. This is to say that the macrophyte pond should retain 59% of the nitrogen by the time the stormwater leaves it.

47. The crucial question is whether we are justified in having confidence that the proposed macrophyte pond designed by Mr Tayler is likely to meet this target. Dr Martens, who did not believe that the target would be achieved, suggested alternative solutions either by reducing the size of the hard surfaces in the development or by biological treatment of stormwater. Dr Martens calculated that to achieve a no net increase in nitrogen load, the hard surface area of the proposed development would need to be reduced from 3.05ha to 2.6ha.

48. Both Dr Martens and Mr Taylor relied on the DLWC’s Constructed Wetlands Manual – Volume 2. Page 255 of the Manual contains Dialogue Box 16-2, with the heading Pollutant Removal Curves. The generic curves on that page were derived from data on wetlands described as large deep open water bodies with fringing macrophytes. The following are among the statements that qualified the curves:

The use of these curves where they were developed (or areas of the same catchment and hydrological conditions) is justifiable, however, care should be taken in other catchments as the blind adoption of these curves has resulted in poor performance of several wetlands; and

The curves can also be used in estimating wetlands size or in an event based analysis for a particular performance. However, they should be considered as conservative and are likely to over-estimate the size required.

49. We have had regard to each of these cautionary statements. However, in the final analysis, we have relied on the statistical material discussed below together with Mr Taylor’s evidence concerning proposed additional ameliorative measures.

50. The curve for each substance is a composite graph which is described in the accompanying text as being one for which the shaded area indicates the spread of data recorded around the average curve solid line. The generic curve for nitrogen contained in figure 16-14 is shown at a very small scale and is therefore hard to interpret. We have therefore interpreted this graph conservatively.

51. Both Mr Taylor and Dr Martens referred us to a graph showing total nitrogen concentration retention on page 83 of Treatment Techniques Managing – Urban Stormwater, a document published by the EPA. Mr Taylor derived some comfort from the fact that the graph showed the retention of nitrogen after 26 days as 60%. Dr Martens considered the graph unreliable because it was the line of best fit for data that were widely scattered around the line. We note (though neither expert took us to it) that relevant graphs appear also on page 104 of the EPA document. The graph for retention of total nitrogen shows considerable similarity to that in the DLWC Manual.

52. The system designed by Mr Taylor involves a hydraulic detention period of 26 days. The DLWC manual shows that, for 26 days retention, the removal of nitrogen is between 38% and 60%, with the average being 49%. The comparable graph in the EPA document that, for 26 days retention, the removal of nitrogen is between 43% and 53%.

53. The experts agree that according to the graph in the DLWC Manual, a retention time of 26 days (assuming average performance of the macrophyte pond), will not result in the removal of 59% of nitrogen, which is the target that Mr Taylor adopted. To raise the performance of the macrophyte pond, Mr Taylor proposes five additional ameliorative measures, which in his judgment will raise the performance of the treatment system.

54. The first measure is the dense planting of macrophytes across the whole of the area through which the stormwater passes. Mr Taylor contrasted this with the design of the wetlands on which the DLWC graph was based. These were wetlands with large deep open water bodies with fringing macrophytes.

55. The second measure is the circulation of stormwater through the macrophyte zone at intervals varying between 16 and 33 hours. Mr Taylor said that for an average hydraulic residence time of 26 days as proposed, this means that the full volume of stored water has passed through the macrophyte zone approximately 26 times before being discharged, compared to once otherwise. This will provide increased reduction of pollutants.

56. The third measure incorporates into the design the ability to store and detain, for between 12 and 24 hours, the first flush of stormwater, thus permitting slow release from the system. Mr Taylor has provided information suggesting that additional nitrogen removal may be effected by such detention. The fourth measure is the incorporation of two separate forms of gross pollutant trap in the system. Mr Taylor’s evidence is that these two traps will increase the capture of suspended solids and therefore also other pollutants associated with them. The final measure is the separation of car wash effluent from the stormwater run-off system. No information was provided on the benefits from this measure.

57. Mr Taylor agreed that there were no examples of detention ponds of the kind that he proposed. Dr Martens did not agree that the ameliorative measures proposed by Mr Taylor would increase the retention of nitrogen to 59%. However, he conceded that some benefit was likely to come from these additional measures.

58. Mr Galasso submitted that, given the lack of examples, it would require “a leap of faith” to accept Mr Taylor's evidence. We reject this submission. The performance of a macrophyte pond with 26 days retention is within the upper limit of the curves in the DLWC Manual and the EPA document. This means that, for the best performing systems, 26 days hydraulic retention time is sufficient to achieve a 59% reduction in total nitrogen. The generic curves are based on wetlands with fringe macrophyte plantings without the ameliorative measures proposed by Mr Taylor. We are satisfied that the denser planting of macrophytes coupled with the ameliorative measures (or at least those for which we have some explanation as to the effect or outcome) make it highly probable that the system will perform better than average and there will be no net increase in nitrogen load.

59. It was common ground that, provided there is no increase in the pollutant load flowing from this site, there is not likely to be adverse impact on the BGHF on adjoining and nearby properties.

Loss of agricultural land

60. The council’s agricultural expert was Mr P Brown, while the applicant’s expert was Mr N Truelove. Neither expert gave oral evidence. The parties tendered a joint report, detailing 16 points of agreement and three points of disagreement. None of the points of disagreement was pressed as determinative.

61. The first point of disagreement concerned the extent to which the existing rural activities around the site are likely to disturb the residents of the subject proposal. Mr Truelove thought there would be little disturbance, while Mr Brown did not know. The second point of disagreement was whether the loss of 4 ha of Class 3 land was significant. Mr Truelove thought it was not significant, while Mr Brown thought it was the "thin edge of the wedge".

62. The third point of disagreement concerned the value of the site to agricultural production. According to Mr Truelove there was no value since the horses grazing on the site were recreational. Mr Brown considered that horse enterprises were capable of generating revenue and therefore should be classed as agricultural activity. We do not accept that the grazing of a few horses is properly described as an agricultural activity.

Accessibility

63. Clause 25 of SEPP 5 states that consent must not be granted for development unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles. Subclause (f)(i) sets out the principle of accessibility, requiring that

the proposed development should, where appropriate, have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities.

64. The applicant proposes construction of a right hand turning median lane in Old Northern Road. A pedestrian refuge is to be incorporated in the median strip to facilitate pedestrian crossing of the road by residents of the proposed development. The application also includes the construction of bus bays on each side of Old Northern Road.

65. In December 2002, we handed down a decision on Momentum Architects Pty Ltd v Hornsby Shire Council, a proposed SEPP 5 development on the site adjacent to the north of the subject site. That case involved similar traffic, access and pedestrian issues. Mr M. Relf, an access consultant for this proposal, gave evidence in that case concerning the design and size of the proposed pedestrian refuge. It his opinion the proposal was sufficient and appropriate for a safe crossing of Old Northern Road by elderly persons or persons with a disability (including those in wheelchairs). According to Mr Relf, the proposed width of the pedestrian refuge in that case was more than sufficient to provide a safe intermediate point for a person in a wheelchair. In Momentum Architects, we accepted Mr Relf's evidence and concluded that these arrangements were satisfactory. Mr Relf has provided a statement of evidence in this case, which reaches similar conclusions to those in his evidence in Momentum Architects. He was not required for cross-examination in these proceedings.

Remaining issues

We propose to adjourn to permit the applicant to address the remaining issue of access to water supply and sewerage disposal and for the council to address the issue of consultation with residents and Baulkham shire Council on traffic matters.

When those matters have been addressed, we will finalise determination of the appeal.

Dr John Roseth

Senior Commissioner

Commissioner of the Court