Motorplex v Port Stephens Council [No 3] - [2008] NSWLEC 1280

Land and Environment Court

of New South Wales

CITATION: Motorplex v Port Stephens Council and anor [No 3] [2008] NSWLEC 1280

PARTIES:
APPLICANT
Motorplex Australia Pty Limited
FIRST RESPONDENT
Port Stephens Council
SECOND RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S): 11328 of 2004

CORAM: Brown C

KEY ISSUES: Development Application :- inconsistency with the zone objectives, unacceptable impact on flora and fauna, unacceptable noise impacts, traffic and safety impacts, inadequacy of details to properly consider erosion, sediment and surface water impacts.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Port Stephens Local Environmental Plan 2000
Threatened Species Conservation Act 1995
State Environmental Policy No 44

CASES CITED: Motorplex (Australia) Pty Limited v Port Stephens Council [2007] NSWLEC 74
Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173
Mison and ors v Randwick Municipal Council and ors [1991] 191 NSWLR 734
Weal v Bathurst City Council and or [2000] NSWCA 88
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING: 12-16/05/08

DATE OF JUDGMENT:
11 July 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Lee, Managing Director of Motorplex Australia Pty Limited
FIRST RESPONDENT
Mr P Larkin, barrister
SOLICITORS
Sparke Helmore
SECOND RESPONDENT
Mr R Lancaster, barrister
SOLICITORS
Roads and Traffic Authority of New South Wales

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

11 July 2008

11328 of 2004 Motorplex Australia Pty Limited v Port Stephens Council (First Respondent) and the Roads and Traffic Authority of New South Wales (Second Respondent)(No 3)
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application 16-2002-42-1 by Port Stephens Council (the council) for the construction of a motor sports complex at 49 and 53 Pacific Highway and 105 Italia Road, Eaglton (the site).

2 The development application was lodged with the council on 10 January 2002. The appeal was filed in December 2004 and has been the subject of numerous Call Overs, Mentions and Directions Hearings in the Court.

3 A separate hearing on the need for a Species Impact Statement (SIS) was heard on 8 and 9 November 2006, 21 November 2006 and 1 December 2006. On 16 February 2007, Preston CJ found that an SIS was required (Motorplex (Australia) Pty Limited v Port Stephens Council [2007] NSWLEC 74) because of the existence of an ecotonal mosaic of three endangered ecological communities (EEC’s): River-flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast Sydney Basin and South East Corner Bioregions, Subtropical Coastal Floodplain Forest of the NSW North Coast Bioregion and Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregion.

4 The proposed development was subsequently amended to reflect the findings of Preston CJ however the council maintained its opposition to the amended proposal. The issues raised by the council to the amended proposal relate to the inconsistency with the zone objectives, unacceptable impact on fauna; particularly the Koala, the Brush tailed Phascogale and the Squirrel Glider, unacceptable impacts on flora; particularly Grevillea parviflora parviflora, unacceptable noise impacts, and the inadequacy of details to properly consider erosion, sediment and surface water impacts.

5 The Roads and Traffic Authority of New South Wales (the RTA) were made a party to the proceedings on 13 May 2008 under s 39A of the Land and Environment Court Act 1979. The principal concern of the RTA was that the intersection of Italia Road and the Pacific Highway would not operate in a safe manner with the proposed development. The agreed position of the council and applicant traffic experts was that the safety of the Italia Road and Pacific Highway intersection could be addressed through compliance with conditions of consent and a Traffic Management Plan (TMP) to be provided through a deferred commencement condition

The site and surrounding area

6 The site consists of Lots 1 and 2 in DP 245116 and Lot 31 in DP 787250. It has an eastern boundary with the Pacific Highway; a part northern boundary with Italia Road and a part southern boundary with Killaloe Lane The total site area is 108.46 ha. Access to the site is from Italia Road near the intersection with the Pacific Highway.

7 The site consists generally of a broad valley with hill slopes and gullies to the west and a valley floor to the east. A large proportion of the site consists of native vegetation. The property is currently used for limited motor sport activities consisting of a bitumen hill climb in the north western corner of the site and a number of informal tracks through the existing vegetation covering most of the site.

8 Development in the area consists of a quarry to the north and west of the site, a landscape supply establishment, a paint ball recreational facility and a motorbike race track called Barleigh Ranch, with the remaining land uses consisting predominantly of rural residential development. The landscape supply establishment, paint ball recreational facility and Barleigh Ranch gain access from Killaloe Lane to Italia Road via an unmade access road over the site near its eastern boundary. The quarry has direct access to Italia Road.

The proposal

9 The proposal provides for the redevelopment of the site for a range of motor racing facilities located to the west of the site. The main features of the proposed development are a drag strip with roofed spectator stands, a dirt track for khanacross and speedway use, a bitumen race track, a pit and paddock area containing garages and other associated buildings and formal car parking for 1291 vehicles and an overflow car parking area for approximately 800 vehicles (see Attachment 1).

10 Following the decision of Preston CJ on 16 February 2007, the applicant indicated that the following amendments were made to the proposed development:

the areas identified as EEC are retained in their natural state with no clearing or impact from the proposed development,
the proposed drag strip has been removed from the eastern side of the site and relocated to an area previously cleared,
the vegetation on the eastern area of the site will be retained and managed as a Conservation Area,
the racetrack is removed from the EEC area,
buildings, car parking and other facilities are relocated to the central area of the site,
the track location has been amended to include areas already extensively cleared,
existing cleared areas within the EEC will be revegetated, and
habitat corridors for wildlife will be created through the western and central sections of the site.

11 The proposed hours of operation (Exhibit K) are unchanged at:

street drags - 26 weeks per year - second Tuesday - 5:30 p.m.-10 p.m.,
circuit racing - 52 weeks per year (if required) - Saturday and/or Sunday - 9 a.m.-5 p.m.,
speedway - 26 weeks per year - second Saturday - 5:30 p.m.-10 p.m., and
test and tune - as required - seven days per week - 9 a.m.-10 p.m.

12 A Biodiversity Management Plan (BMP) forms part of the proposed development and addresses Biodiversity Management (Section 4), Vegetation Management Strategy (Section 5), Monitoring and Reporting (Section 6) and Impact Mitigation (Section 7). The primary purpose of the plan is to detail methods for the management of vegetation and other habitat resources through the pre-construction, construction and post-construction phases of the development. The BMP provides for the ongoing maintenance of habitat within the site for native flora and fauna species both within the proposed conservation area and also within areas of native vegetation to be retained as corridors between and around at the proposed development.

13 A Traffic Management Plan (TMP) is required to be provided as a deferred commencement condition of consent and include specific matters identified in the joint report of the traffic experts from the applicant and the council.

14 The site is within the 1(a) Rural Agriculture zone under Port Stephens Local Environmental Plan 2000 (LEP 2000). The proposed use is defined as a “race track” and is permissible in the zone with consent. The Dictionary to LEP 2000 states that:

race track

means a place used for racing activities involving motor vehicles and includes associated training in servicing whether or not the place is also used in part for a club.

15 Clause 10(2) provides that

2) The consent authority must not grant consent for development of land to which this plan applies unless it is satisfied that the proposed development is consistent with the objectives of the zone in which it is intended to be carried out.

16 The 1(a) zone objectives are:

The objective of the Rural Agriculture “A” Zone is to maintain the rural character of the area and to promote the efficient and sustainable utilisation of rural land and resources by:

(a) regulating the development of rural land for purposes other than agriculture by ensuring that development is compatible with rural land uses and does not adversely affect the environment or the amenity of the locality, and

(b) ensuring development will not have a detrimental effect on established agricultural operations or rural activities in the locality, and

(c) preventing the fragmentation of grazing or prime agricultural lands, protecting the agricultural potential of rural land not identified for alternative land use, and minimising the cost to the community of:

(i) fragmented and isolated development of rural land, and

(ii) providing, extending and maintaining public amenities and services, and

(d) protecting or conserving (or both protecting and conserving):

(i) soil stability by controlling development in accordance with land capability, and

(ii) trees and other vegetation in environmentally sensitive localities where the conservation of the vegetation is likely to reduce land degradation or biodiversity, and

(iii) water resources, water quality and wetland areas, and their catchments and buffer areas, and

(iv) land affected by acid sulphate soils by controlling development of that land likely to affect drainage or lower the water table or cause soil disturbance, and

(v) valuable deposits of minerals and extractive materials by restricting development that would compromise the efficient extraction of those deposits, and

(e) reducing the incidence of loss of life and damage to property and the environment in localities subject to flooding and to enable uses and developments consistent with floodplain management practices.

17 The applicant provided expert evidence from:

Dr David Robertson, ecologist,
Mr John Travers, ecologist,
Mr Stephen Cooper, acoustical engineer,
Mr Ronald Brown, traffic engineer,
Mr Bob Staniland, civil engineer,
Mr Brian Wright, soil conservationist, and
Mr Greg Smith, town planner.

18 The applicant provided lay evidence from Dr Richard Cardew, a member of the Historic Sports Racing Club of Australia. He stated that the proposed development needed to be considered as a regionally significant development; there being only four motor racing tracks remaining in New South Wales. He questioned whether the matters required to be protected by the council are so important that they should be protected at all costs and that the development was likely to provide greater protection of flora and fauna than if the site remains undeveloped.

19 Mr Gary Topic is the Group Functions Manager of an existing hotel at Heatherbrae. He supports the proposed development because of the additional activity that it would generate for local businesses.

20 Mr John Collins is the Vice President of the MG Car Club of Newcastle. The club is the owner of the site and supports the proposed development. He rejects the contentions raised by the council and in his opinion the proposed development will have little or no impact on adjoining properties.

21 The council provided expert evidence from:

Dr Andrew Smith, ecologist,
Mr Barry Murray, acoustical engineer,
Mr Tim Rogers, traffic engineer,
Mr Angus Serberry, environmental planner with the Hunter Water Corporation, and
Mr Peter Jamieson, civil engineer.

22 The council provided lay evidence from:

Mr Kevin McDonald of 379 Italia Road,
Ms Pamela Weston, the owner of the property at 57 Winston Road,
Mr Vince Furlonger, the operator of a respite centre for people with a disability at 10 Six Mile Road,
Mr Mark Stace on behalf of his parents at Lot 22 Six Mile Road.

23 The concerns of the local residents generally related to:

the inappropriateness of the proposed development for the area,
the scale of the proposed development,
noise,
traffic and safety, particularly at the intersection of Italia Road and Pacific Highway,
impact on water quality,
loss of native vegetation,
impact on native fauna, and
impact on the clients of a respite centre in Six Mile Road.

24 The RTA provided expert traffic evidence from Mr Kevin Webster, the Manager, Road Safety and Traffic for the RTA Hunter Region.

25 The Statement of Facts and Contentions identifies that when the development application was advertised there were 168 letters of objection (plus petitions) and 141 letters of support (plus petitions). At the hearing, the Court had the benefit of copies of the letters of support and objection and also a summary of these letters.

Fauna - the threatened species or populations

26 The site has a large cover of natural vegetation. The SIS prepared by Dr Robertson identifies the vegetation communities that exist on the site (Section 2.4.7). I did not understand there to be any significant difference between the experts on the classification of vegetation on the site and in the wider study area or the fact that the site supports a range of threatened species and provides habitat for native fauna. The differences between the experts centred on the affect the proposal would have on the threatened species.

27 The SIS states that the site currently consists of 23 ha of cleared land and 84 ha of forested land. The footprint of the proposed development will cover approximately 40 ha however some 14 ha of the footprint is already cleared so the loss of existing forest will be 26 ha. A mapped fauna corridor (the Wallaroo-Raymond Regional Corridor) traverses the site and provides linkages to the Wallaroo State Forest (including the adjacent Wallaroo Nature Reserve), Seven Mile Creek area to the southern reaches of the Grahamstown Dam region. A regional corridor is a landscape corridor designed to provide potential residential and dispersal habitat for threatened fauna species and supplementary habitat for other species. Typically, a corridor is wide to maintain habitat, facilitate movement between the areas of significant habitat and protected catchment areas and buffer against the impact of fragmentation of corridors.

28 The SIS identified a number of threatened species or populations known or likely to be present in the area of the proposed development and in an area likely to be affected by the proposed development. The fauna most significantly affected are the:

Squirrel Glider (Petaurus norfolcensis),
Brush-tailed Phascogale (Phascogale tapoatafa), and
Koala (Phascolarctos cinereus).

Squirrel Glider – the evidence

29 The squirrel glider is listed as Vulnerable under Schedule 2 of the Threatened Species Conservation Act 1995 (TSC Act).

30 Dr Robertson states that squirrel gliders have been found in a range of sites in the locality and in high concentrations in the centre of the study area. The habitat within the surrounding State Forests and Nature Reserves is considered to be secure and has conservation significance. In accepting that squirrel glider habitat will be removed as a result of the proposed development (in particular, an area that included a number of captures and nest trees) large areas of known habitat will be retained and known nest trees will also be preserved. In total, 25 ha of habitat will be removed however 27 ha of preferred habitat will be retained and 32 ha of supplementary habitat will also be retained. This is 67% of the current vegetation on the site. Dr Robertson accepts that the squirrel glider population will be at most risk from clearing of habitat and impact on the species will be high within the site, however habitat exists for the species in surrounding areas. Overall, the species as a whole will not be significantly affected by the proposed development.

31 This was also a conclusion supported by Mr Travers who stated that the proposed development will not isolate an area of habitat nor will it break connectivity to adjoining lands. If the species on the site is reduced Mr Travers considers that a sufficient amount of suitable habitat will remain in the immediate locality of the site.

32 Dr Smith states that the proposed amendments and the further evidence of Dr Robertson and Mr Travers does not change his position that the proposed development is unacceptable not just for the squirrel glider but for other identified threatened species. He relies on comments in previous reports he has prepared. Dr Smith questions the survey methods undertaken by the applicant and also the conclusions of Dr Robertson that address the risk of the population as a whole rather than the impact on the local population. If the local population is considered (as should be done under the tests in s 5A of the Environmental Planning and Assessment Act 1979 (EPA Act)), Dr Smith concludes that the local population of the squirrel glider is at risk of extinction under the current proposal due to reduction of habitat area to a non-viable extent.

Brush-tailed Phascogale – the evidence

33 The brush-tailed phascogale is listed as Vulnerable under Schedule 2 of the TSC Act.

34 Dr Robertson states that the species is most common north of Newcastle and there have been recorded occurrences in the locality and on the site. Dr Robertson however maintains that the concentration near and on the site reflects the concentration of intensive surveys undertaken over the time associated with the proposed development. In his opinion, it is likely that the population in the study area is relatively small and forms part of larger home ranges for the species. The brush-tailed phascogale is at most risk from clearing of habitat and impact on the species will be high within the site, however extensive habitat exists in the locality. The SIS identifies that 17 ha of the 54 ha of potential habitat on the site will be cleared leaving 34 ha of habitat remaining. Dr Robertson maintains that efforts have been made to preserve habitat in the amended design and the species as a whole will not be significantly affected by the proposed development.

35 Mr Travers agrees with Dr Robertson that the proposed development will not remove significant areas of habitat suitable for the brush-tailed phascogale. Based on his surveys 59.5 ha of suitable habitat will be retained. Considering over 10,000 ha of suitable habitat is directly connected to the site and with large portions located in conservation areas, it is not appropriate to conclude that the development would have a significant effect on the life cycle of the species such that a viable local population is likely to be placed at risk of extinction.

36 Dr Smith states that there are 59 records of the brush-tailed phascogale in the local government area and most of these are from separate local populations isolated from the site. There are only nine recordings in the local area, two of which occur on the site. He notes that no evidence has been provided to support claims that large areas of secure habitat are located nearby and in his opinion the evidence indicates nearby habitats are limited and insecure. The nine recordings in the local population area occur in private or forestry tenures where they are at risk from cumulative habitat clearing as well as disturbance by forestry, quarrying and other human activities. Dr Smith notes that the home range requirement of a single individual brush-tailed phascogale is around 50 ha.

37 In Dr Smith’s opinion it must be concluded that the local population of the brush-tailed phascogale is likely to become extinct on the site under the proposal because insufficient habitat will remain on the site to support a single individual and there is no proof of the existence of continuity of the local population in surrounding areas.

Koala - the evidence

38 The koala is listed as Vulnerable under Schedule 2 of the TSC Act. State Environmental Policy No 44- Koala Habitat Protection is relevant, as is Port Stephens Council Comprehensive Koala Plan of Management (the Koala Plan). The site is identified as "Supplementary Koala Habitat" in Figure 1 of the Koala Plan. Relevantly, the Performance Criteria for non-agricultural development applications (the Koala Plan, Part 2, cl 5.4) states that the proposed development must:

maximise retention and minimise the degradation of native vegetation (cl 5.4(b)),
minimise the removal of any individuals of preferred koala feed trees (cl 5.4(c)),
make provision, where appropriate, for restoration or rehabilitation of the areas identified as koala habitat (cl 5.4(d)),
make provision for long-term management and protection of koala habitat (cl 5.4(e)), and
not compromise the potential for the safe movement of koalas around the site (cl 5.4(f)).

39 Dr Robertson states that koala’s are found in the area surrounding the site however abundance in the study area is very low. During the surveys, few scats were found at the site and no koalas have been sighted however, there have been reports of koala sightings on the site from occupants of adjoining businesses. A koala skeleton was recovered from the site during a survey in 2005 and koala scats have been founded during previous surveys in 2004. Koala habitat on the site includes communities that contain Grey Gums and Forest Red Gums. Approximately 24 ha of the 64 ha of potential habitat will be cleared leaving an area of 41 ha of potential koala habitat remaining.

40 Dr Robertson states that the koalas will be most at risk from clearing of habitat however the main area of habitat is being retained in the wildlife corridor along the western boundary. Due to the low use of the property, retention of habitat, and large areas of primary koala habitat available in the locality, impact will be low for the species.

41 Dr Smith states that the proposed development does not satisfy the Performance Criteria for non-agricultural development applications in the Koala Plan in that it does not maximise retention and minimise the degradation of native vegetation (cl 5.4(b)) because of the clearing of existing vegetation, and particularly preferred koala feed trees.

Flora - the threatened species or populations

42 The SIS prepared by Dr Robertson identified a number of threatened species or populations known or likely to be present in the area of the proposed development and in areas likely to be affected by the proposed development.

43 The flora most potentially affected is the Grevillea parviflora parviflora. The species is listed as Vulnerable under Schedule 2 of the TSC Act and the Environment Protection and Biodiversity Conservation Act 1999.

44 The SIS states that there is one record of the species in the North Coast Bioregion in the last 25 years with the species mainly found in the Sydney Basin Bioregion where there are 161 recordings. The nearest large population is in the Cessnock-Kurri Kurri area. Some of the population on the site will be at risk from clearing however other areas where the species occur on the site will be protected. Overall, the impacts on the species as a whole will not be significant.

45 Surveys conducted by Mr Travers found approximately 374 specimens within three separate populations on the site. The proposed development is likely to result in the removal of only 28 specimens (7%) of the species within one of the populations found on the site. The remaining two populations will not be directly impacted by the proposed development. Large areas of potential habitat for this species within the subject site will be retained as well as areas outside the site. The translocation of affected species was an option he considered appropriate when balanced against the potential loss of the species.

46 Dr Smith states that the population on the site is an isolated population, close to the northern limit of its range and well separated from the main currents of this species to the south. This is the only known population in the study area and because of its unique location, may have an unusual genetic composition which enables it to survive outside the normal range of the species, and which may be important to the survival of the species in the long-term. The translocation of the species is not supported by Dr Smith as its survival is not certain to be successful because of native plants are notoriously difficult to translocate as new sites may have altered hydrology and micro-climates.

Impact of proposed development

47 Dr Robertson states that the amended proposal has been substantially rearranged to take account of, and minimise impact to known threatened flora and fauna. The footprint of the proposed development has been substantially reduced and the endangered ecological communities have been protected and retained. Connectivity is retained to adjoining lands and the remaining bushland along the western and eastern boundary adjoins the vegetation within the adjacent quarry and as such will provide significant wildlife habitat and corridors. Vegetation on the northern and southern boundaries will be retained to provide connectivity.

48 Representative habitat for all known threatened fauna will be retained on-site and the BMP provides significant provisions to protect and manage such habitat in the long-term. The most effective amelioration measure is the retention of habitat in situ on the site with much of the habitat to be retained in and along riparian corridors. In addition to habitat retention, other measures such as the use of fauna over-passes, nest boxes and replanting are also to be used but these are not the main measures. Currently, the endangered communities are not managed and are impacted by a major road that cuts through the site. The road is unmade and dust and run-off directly enter the vegetation in the riparian areas however under the proposed development these impacts will be controlled and managed in accordance with the contents of the BMP.

49 Overall, Dr Robertson is of the opinion that the proposal is consistent with ecologically sustainable development because the development will entail the conservation and long-term management of the majority of forest habitat on-site, with representative areas of each known forest type and habitats retained for all known threatened species

50 Mr Travers agrees with the conclusions of Dr Robertson. He notes that the footprint of the current proposal results in less impact to existing vegetation than the original plans. The environmental measures proposed in the amended development application provide optimal wildlife and habitat resource protection, which will result in a negligible impact, if any, on species that are known, or have potential to occur within the site. The BMP will provide ongoing management and monitoring strategies for the ongoing protection of native wildlife.

51 Dr Smith states that the magnitude of impact is unacceptable. The area of habitat loss and barrier effects is exceptionally high and inconsistent with government targets and policies, as it will result in the loss of its least 26 ha of high-quality threatened fauna and flora habitat and the modification of a substantial additional area. This area is large in absolute terms and represents a significant cumulative loss of threatened fauna habitat in the region and locally. Contrary to the evidence, the amended proposal is not substantially located on previously cleared areas where impact would be lowest and is not located in the eastern edge of the site where flora and fauna diversity is lowest. Importantly, it is located substantially within a mapped regional corridor for fauna movement and dispersal. The amended proposal also creates significant internal barriers and impediments to fauna movement between the east and west of the site in the form of acoustic barriers, racetracks and parking lots.

52 While originally accepting in his 2005 report that a minimum of 50% of native vegetation cover should be retained, Dr Smith now notes that government policies and general standards of vegetation protection have tightened and he now no longer relies on his previous opinion. Contemporary standards allow for little or no clearing of threatened species habitat unless offset by compensatory restoration or protection which results in an overall maintenance or improvement in biodiversity, or unless the site has high socio- economic importance at a State level and clearing is unavoidable. He does not consider the proposed development to fall within the latter category.

Mitigation/ compensation measures

53 Dr Robertson rejects the suggestion that the proposal involves no offsets. He states the proposal provides for replanting of Grevillea parviflora in a suitable location on the site and the BMP also has provision for re-planting of cleared areas with appropriate species and for the management of habitat via weeding to maintain and improve the habitat over time.

54 Mr Travers is of the view that the issue of compensatory planting for the loss of existing vegetation can be addressed, if required, at a later time based on discussions with the Department of Environment and Climate Change and direction from the department on an appropriate location, size and vegetative makeup of an area of land suitable for offset purposes.

55 Dr Smith states that the proposed development is inconsistent with the Native Vegetation Act 2003, which requires that biodiversity and threatened species populations be maintained or improved. There are no offset measures proposed to compensate for habitat loss. Proposed restoration of an existing road will provide only minor additional habitat and this effect will largely be offset by clearing of a new alternative road access route along the eastern boundary of the site. The proposed wildlife corridor is unlikely to be effective, as it requires the sequential crossing of a series of impediments including two roads, the drag strip and associated embankments and large acoustic barriers. The aerial ropeway crossings are unsuitable for most fauna, including koalas.

A further amended proposal

56 During the hearing Dr Robertson, Mr Travers and Dr Smith further considered their differences on the impacts on flora and fauna. Surprisingly, and after the years that the proposal has been under consideration and the consistent issues raised by the council over the impact on flora and fauna, there was agreement between the experts that if a generally large number of amendments were made to the amended proposal then the impacts can be reduced to a point where all experts agreed that any ecological impacts would no longer be significant and would be sustainable in the long term (Exhibit 14). As I understand, the further amended proposal utilises the disturbed or cleared areas of the site to a greater extent and limits vegetation loss to a maximum of 8 ha (compared to around currently 24 ha).

57 Notwithstanding the agreement, the further amended proposal appeared to be substantially different to the proposal under consideration and not in a form that could be reasonably considered as part of these proceedings. The further amended proposal would also likely have consequential changes to the other issues raised by the council that also could not be properly considered as part of these proceedings. In any event, no application was made to amend the appeal to rely on the further amended proposal so the matter is to be determined on the amended plans.

Findings – impact on flora and fauna

58 It is not necessary to individually address each of the identified flora and fauna species, as I am satisfied that there is a consistent reason why the conclusions of Dr Smith should be preferred. I can comfortably conclude that the proposed development would unacceptably impact on threatened species (at least 12 species according to Dr Smith) for a number of reasons.

59 Firstly, the extent of the loss of existing vegetation that is unchallenged as habitat for a range of threatened species is unacceptable in quantitative terms, being an area of some 26 ha. Dr Robertson identified the clearing of vegetation as a key threatening process to the identified threatened species in his SIS. The fact that the amended proposal achieves greater tree retention than the original proposal is immaterial when the amended proposal is still unacceptable in this regard.

60 Secondly, I do not accept that the ameliorative measures proposed adequately compensate for the lost area of habitat and the value that this habitat has for the long-term preservation of the threatened species. The proposal to provide corridors across the site (and across the race track and drag strip) is an option that is not without risk for the species that would use the corridor and should only be undertaken when all other viable options have been exhausted. I am not satisfied that this is necessarily the case in this application. I share Dr Smith's concerns over the barrier effects of the proposed car parks, fencing and the potential isolation of vegetation patches and the unsuitability of the proposed over-passes for all but of few threatened species, such as the Koala.

61 I agree with Dr Robertson that the replanting of cleared areas on the site should be undertaken but I do not accept that this compensates for the loss of some 26 ha of existing habitat. The regional corridor will be unacceptably impacted upon and while it may still perform a role as a corridor and habitat, this role will be clearly diminished by the reduction in width to around 100 m. There must also be real doubt about reliance on land outside the site without any security that the land would be available for corridor purposes in perpetuity.

62 Thirdly, the use of offsets to compensate for the loss of habitat was not seriously addressed in the SIS, despite this being a requirement of the Director-General of the Department of Environment and Conservation (Section 7.1.2) or by Dr Robertson and Mr Travers in their evidence. The significant loss of habitat clearly triggers the need for the serious consideration of compensatory planting. I do not accept the position adopted by Mr Travers that this can be done at a later time as the Director-General’s requirements clearly specify that there is an obligation to identify compensatory planting in the preparation of the SIS.

63 The issue of compensatory planting for the loss of some EEC and some corridor vegetation was addressed by Preston CJ in Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173. In this case, an area of 73.24 ha was offered as an offset for lost vegetation. This offset area was in the order of 20 times the area of vegetation lost. The article by P Gibbons and D B Lindenmayer, “Offsets for land clearing: No net loss or the tail wagging the dog?” (2007) 8(1) Ecological Management and Restoration 26, was the basis for determining whether the proposed compensatory planting was adequate in the circumstances of that case. The Gibbons and Lindenmayer article accepts that offsetting is a useful policy instrument, however it must be on a "no net loss" approach. Offsets will only contribute to no net loss if a number of parameters are satisfied. Land clearing with offsets outside the identified parameters would be inconsistent with a "no net loss" approach.

64 A cursory assessment of the amended proposed against the parameters in this article would find the proposed development clearly contrary to a "no net loss" approach.

65 The response from the Department of Environment and Conservation (dated May 2008) also recognises the loss of important habitat and the lack of compensatory planting and consequently the unsuitability of the proposed development. The response strongly recommends that proposed offsets and compensatory measures be revised and substantially upgraded in accordance with DECC Guidelines (Draft Guidelines for Biodiversity Certification of Environmental Planning Instruments, Appendix 2).

66 Fourthly, and of some importance is the fact that there is a potential design for the motor racing facilities that minimises the amount of habitat loss and consequent impact on flora and fauna to an acceptable level. This supports the position taken by Dr Smith. For whatever reason, the agreed redesign of the racetrack and facilities that removed the flora and fauna issues was not an option addressed in the EIS (cl 6.4 - Description of feasible alternatives).

67 On the issue of impact on flora and fauna, and in the absence of any compensatory planting, I have little difficulty in concluding that it appears that the applicant’s desire for the proposed development was the principal objective of the proposed design and that the protection of vegetation and movement of fauna across the site was a secondary consideration. I note that the range of facilities did not change despite the limitations on the area available for development imposed in the decision of Preston CJ. The consequence being that the proposed development would significantly impact on a range of threatened species and as such development consent should be refused for this reason alone.

68 Noise from the proposed development was a consistent concern of local residents. It was of special concern to Mr Furlonger, the operator of the respite centre for people with a disability at 10 Six Mile Road who stated that some clients suffer from “startle reflex” and are particularly sensitive to unexplained noise disturbances.

The evidence

69 Mr Cooper and Mr Murray provided a joint report. They agreed that the average maximum noise limit should be set for each receiver location at background noise level f +10dBA with the exception of the Port Stephens Landscape Supplies where the average maximum noise limit should be background noise level +15dBA. It was also agreed that the average maximum noise level should be measured by taking the five highest noise levels during any 60-minute period and calculating the arithmetic mean of these levels. Based on this criterion, average maximum noise limits were set for the Van de Werken residence, the Stace residence, Six Mile Road West, the respite centre of Mr Furlonger, 84 Italia Rd, the caretakers residence used by the landscape supply business and the landscape supply business. There was disagreement between Mr Cooper and Mr Murray on the need to include the caretaker’s residence and the landscape supply business in the noise assessment.

70 Mr Cooper and Mr Murray agreed on a range of conditions that should form part of any approval, with the exception of a condition relating to the height of the noise barriers. While agreeing on the procedure for noise calculation, they disagreed on the appropriate sound power level from the noise source to be used in the calculation of the sound power levels generated by the vehicles at the proposed development. Mr Cooper adopted a sound power level of 129 dBA and Mr Murray adopted a sound power level of 137 dBA.

71 To achieve the agreed average maximum noise limits for the nearby residences and adopting Mr Cooper’s sound power level of 129 dBA, sound barriers around parts of the racetrack would need to range between 2 m and 4 m and for the drag strip between 8 m and 10 m (see Appendix B Exhibit 7). If Mr Murray's sound power level of 137 dBA were adopted, sound barriers around parts of the racetrack would need to range between 2 m and 9 m and for the drag strip between 8 m and 10 m (see Appendix C Exhibit 7).

72 On the question of the appropriate sound power level, Mr Murray states that a level of 137 dBA is justified based on noise measurements carried out by Mr Cooper at the Wakefield Park racing car circuit and the racing car noise limits imposed by the Confederation of Australian Motor Sports (CAMS) of 94 dBA at 30 m. Based on the highest maximum level measured at Wakefield Park by Mr Cooper of 99 dBA at a distance of 30 m, Mr Murray states that this converts to a sound power level of 137 dBA at the source. The CAMS limit for one vehicle converts to 132 dBA at the source, assuming the maximum level occurs when the vehicle is at its closest point, which is probably not the case. If three vehicles achieve the maximum CAMS limit at the same time, then the sound power level would be 137 dBA.

73 Mr Cooper, prior to attending Wakefield Park, agreed with the approach adopted by Mr Murray however on observing and measuring the noise from various vehicle categories at Wakefield Park he found the noise level at locations approximately 30 m from the centre of the track significantly lower than expected. Enquiries with the manager of Wakefield Park indicated that the vehicles involved in Club racing ensure that their vehicles are below the CAMS limit to avoid being disqualified. On this basis, Mr Cooper adopts a sound power level of 129 dBA.

Findings

74 On this issue, I agree with the conclusions of Mr Murray. Even accepting that race cars are likely to have different noise levels depending on the different categories and intensity of racing, it would not be such an improbable situation to have at least three vehicles operating at or near the CAMS limit around the same time such that this scenario should not be a reasonable basis for assessment. To support this proposition, the evidence indicated that while the CAMS limit is measured at 30 m from the vehicle it is also measured at a position perpendicular to that vehicle and may not necessarily represent the sound power level at the source of the noise. The location of the exhaust at the rear of a vehicle was an example given to highlight this point. Potentially, a vehicle may comply with the CAMS limit when measured at 30 m and perpendicular to the vehicle but may have a higher sound power level as it proceeds past the measurement point.

75 The consistent concern over noise by local residents, the proposed hours of operation, the intensity of the proposed development and the variability of potential noise sources, in my view, calls for a cautious approach to the assessment of noise impacts.

76 Mr Cooper and Mr Murray agreed that subject to the construction of noise barriers (either those in Appendix B or Appendix C) and the inclusion of agreed conditions of consent, then the proposed development can meet the agreed average maximum noise limits. The adoption of the noise barriers recommended by Mr Murray raises consequential visual impact issues that are addressed later in the judgement (see par 133).

77 I also agree with Mr Murray’s concerns over the lack of assessment of the caretaker's cottage associated with the nearby landscape supply business. As I understand, no objection was raised to the proposed development from the owners of the landscape supply business however the caretaker's cottage associated with this development is located on separate lot and theoretically can be sold independently of the landscape supply business so any noise impacts should be assessed. This is not a matter that would necessarily warrant the refusal of the application however it would be a matter that would require further assessment if development consent was to be granted.

Traffic and safety

78 Mr Brown and Mr Rogers provided a joint statement and individual reports that provided for people attending major events to be capped at 3500. This would occur when speedway (2500 people) and circuit racing (1000 people) events occur at the same time on a Saturday. This could occur up to 26 times per year. Major events are defined as being where two or more of the facilities are used concurrently. Major events at the site are not to occur at the same time as motorcycle events at the adjacent Barleigh Ranch.

79 There was agreement between Mr Brown and Mr Rogers that 2.5 persons per vehicle was an appropriate rate to assess parking for the proposed development. At a maximum 3500 people, 1400 spaces would be required and could be provided on site.

80 The principal traffic and safety issue relates to the intersection of the Pacific Highway and Italia Road. The intersection is located on a slope with a grade of 4% with the crest of that slope to the south of the intersection. The speed zone at the intersection is 100 kph, which is appropriate for the intersection sight distance. A Give Way sign is located on Italia Road. The intersection includes a "seagull" type intersection that provides protected right turn movements into and from Italia Road.

The evidence

81 Mr Brown and Mr Rogers concluded that satisfactory implementation of the TMP will result in the proposed development not having an adverse impact on the safety and efficiency of the Pacific Highway. Conversely, they state that if the TMP is not satisfactorily implemented (such as higher vehicle numbers or inadequate management of traffic into an out of the site) then the proposed development could result in adverse traffic impacts. It is proposed that the TMP should be a dynamic document and allow for appropriate changes to better manage traffic movement to and from the site.

82 Mr Brown and Mr Rogers state that a TMP shall be submitted for the approval of the council and the RTA prior to the operation of any consent through a deferred commencement condition (1G). The deferred commencement condition requires the TMP to address:

a) The range of different events (i.e. Drag Racing, Circuit Racing, Speedway etc) occurring at the site the Traffic Plan seeks to manage;

(b) Identify management strategies to be introduced to protect the travelling public from risks arising from the traffic generation of the different events proposed to occur at the site;

(c) Identify physical works required to be undertaken within the site, and within the local road network necessary to implement this management plan (i.e. barricades, median strips, pedestrian blisters, line marking, signage, intersection works, boom gates, etc);

d) Identify the implementation measures required for the proper operation of the Management Plan including the number and type of personnel required (i.e. Traffic Marshalls, Rangers, Police Officers) and their roles and responsibilities incorporated into the Traffic Plan;

(e) Identify the direct impacts of the development on the local road network and recommend measures to ensure that road network is not degraded from the affected by such impacts;

(f) Identify the indirect impacts of the development on the local road network and recommend measures to protect the height or road network affected by such impacts;

(g) Identify how the number of vehicles associated with events at the proposed development and at the adjacent Barleigh Ranch would not exceed 1400 vehicles.

83 The following conditions are proposed by Mr Brown and Mr Rogers in relation to spectator limits:

15. No more than 1400 vehicles shall be permitted on the site during any major event. For the purposes of this condition and conditions 16 and 17, a "major event" is an event where two or more of the drag strip, circuit course, speedway or hill climb facilities are used at any one time or during any one meeting.

16. No more than 26 major events, as defined in condition 15, are to be included at the site in each calendar year.

17. No major event, as defined in condition 15, is to be held when any significant traffic is likely to be generated on any adjoining property, including but not limited to the "Barleigh Ranch” site and/or land known as Lot 1 DP 1108702, Lot 2 DP 1108702 and Lot 481 in DP 611651. For the purpose of this condition, "significant traffic" is defined as generating more than 500 vehicle movements to or from the site "Barleigh Ranch” in any 24-hour period.

18. Except as provided for in condition 15, no more than 1000 vehicles shall be permitted on the site at other time.

84 Mr Webster comes to a different conclusion. He states that the proposed development is unsatisfactory in traffic terms because it would involve substantial additional traffic leaving the site to enter the Pacific Highway in a high-speed traffic zone, mostly from a standing start in Italia Road. Intensive traffic volumes are likely to cause significant queuing in Italia Road and create significant delays for turning movements onto the Pacific Highway. Driving behaviour of some patrons leaving the site is likely to be poor and this was confirmed through observations made during a demonstration event that occurred around 28 May 2006 using the traffic from an event at Barleigh Ranch. This event was designed to test the way in which certain traffic arrangements would cope with the expected volume of traffic generated by the proposed development.

85 Mr Webster states that traffic measures within the TMP are unsatisfactory for number of reasons, including:

the focus on the overall intersection performance rather than the right turn movement from Italia Road,
Mr Brown's analysis using the SIDRA traffic delay assessment model for intersection performance indicates a level of service "F" for right turn movements from Italia Road for a standard event,
the use of the U-turn bay 500 m to the north is unsafe for frequent use,
the requirements are vague and imprecise on how crowd numbers are proposed to be controlled,
the assumption that 34% of the traffic exiting the site from Italia Road would turn left is uncertain and may not occur,
the mix of vehicles from the proposed development with heavy vehicles coming from the nearby quarry is problematic, and
there is no contingency for concurrent use of the proposed development and Barleigh Ranch.

86 While the intersection does not have an accident history over the past five years, Mr Webster states that the RTA has recognized problems associated with "seagull" type intersections in high-speed rural locations. These issues are exacerbated where there are large numbers of vehicles entering the Pacific Highway, as would occur with the proposed development. Mr Webster is of the view that the issues identified by the RTA can only be acceptably managed by the construction of a grade-separated intersection to be fully funded by the applicant.

Findings

87 The undisputed evidence from the traffic experts is that the intersection of Italia Road and the Pacific Highway has a threshold for vehicles with the critical movement being right from Italia Road into the Pacific Highway. Beyond that threshold the intersection becomes unsafe. Mr Brown and Mr Rogers address the intersection threshold through a limit on patrons and consequently the number of vehicles through conditions and a TMP. Mr Webster is of the view that the TMP is not an appropriate means of controlling traffic at the intersection and the only appropriate way of dealing with the increased traffic at the intersection is by the construction of a grade-separated intersection. This is not an acceptable option for the applicant.

The intersection

88 Mr Brown provided a SIDRA analysis of the Italia Road and Pacific Highway intersection using a number of event options and sub-options. The SIDRA Model is used to analyse isolated signal controlled intersections, roundabouts and priority intersections. Based on average delay per vehicle, SIDRA estimates the levels of service (LOS). These are:

89 The options used by Mr Brown adopt a 6 second gap acceptance and a 4 second headway based on the number of lanes to be crossed and the gap acceptance parameters in Part 2 of the AUSROADS (1988) Guide to Traffic Engineering Practice.

90 The results provide for a LOS A and B in all instances with the exception of the option that has the concurrent use of the circuit and the drag strip for a 9.00 pm departure on a Saturday night. For this option, the intersection has a LOS F. Notwithstanding this, Mr Brown states that a LOS A could be achieved for this scenario if a 5 second gap acceptance and a 3 second headway is adopted.

91 On the basis of the SIDRA analysis, I accept that the intersection is not likely to operate in an acceptable manner. Even though the analysis indicates an unsatisfactory level of service for only one of the scenarios modelled, this scenario is the most potentially dangerous and could occur up to 26 times per year. I do not accept that the adjustment of the gap acceptance and headway criterion, as suggested by Mr Brown, is an appropriate response to the unsatisfactory level of service given that the original gap acceptance and headway criterion were seen as appropriate for the characteristics of the intersection for the other options.

92 I am also mindful that the SIDRA analysis of Mr Brown relates only to the likely traffic generated by the proposed development. Italia Road provides access to a number of rural residential properties and indirect access to towns such as Maitland, Cessnock, Kurri Kurri and Raymond Terrace. Heavy vehicles associated with the landscaped supply business near the site also use the Italia Road and the Pacific Highway intersection. Even accepting that the additional local traffic movements along Italia Road are not likely to be significant, they nonetheless should be part of the assessment of the suitability of the intersection for the proposed development. In my view, the heavy vehicles associated with the landscape supply business are a more important consideration given their reduced mobility, compared to motor vehicles. No evidence was provided on the hours of operation of the landscaped supply business or the frequency of heavy vehicles using the intersection. Lay evidence was given on-site as to the unsuitability of the intersection for this type of vehicle and also the likely unacceptable impact on local traffic. It well may be that the inclusion of these vehicles may not impact significantly on Mr Brown's SIDRA analysis however they should be included in any analysis of the intersection performance.

93 In finding that the intersection is not likely to operate in an acceptable manner, I have also taken into consideration the level of regulation necessary to address the potential impact on the Italia Road and the Pacific Highway intersection. For the proposal to operate in an acceptable manner, the applicant will be required to:

limit the use of the different facilities on the site,
limit the number of entry tickets to not exceed maximum number of patrons,
turn patrons away who do not have tickets,
turn patrons away who do not arrive by vehicle,
provide staff to direct at least 14% of vehicles to turn left into Italia Road,
limit vehicles leaving the site to avoid excessive queuing on public roads.
upgrade local intersections,
identify management strategies to protect the travelling public from risks arising from the proposed development,
identify physical works within the local road network,
identify direct and indirect impacts on the local road network and measures to ensure that the roadwork is not degraded by the proposed development, and
agree with the operators of Barleigh Ranch on concurrent use to ensure that there would be no more than 1400 vehicles from both venues.

94 In accepting that it may be physically possible to provide the staff to direct patrons, carry out improvements on the local road network and obtain agreement on limitations on the use of other nearby developments, there must be a point where the amount of matters necessary to make a development acceptable becomes so extensive, complex and requiring such high levels of control that they become issues in themselves. In this case, I accept that this point has been reached. The need for such extensive requirements highlights the unsuitability of the site for the size and scale of the proposed development. This becomes a critical matter when a failure to strictly comply with one or more of the requirements could create a potentially dangerous situation at the Italia Road and Pacific Highway intersection.

95 There is also some merit in the argument put by a number of local residents that the increased traffic onto Italia Road and other local roads is unacceptable. Even though the additional traffic is likely to be within the environmental capacity of these roads, the need to direct traffic along these roads to reduce movements at the Italia Road and Pacific Highway intersection further supports the conclusion that that the size and scale of the proposed development is excessive for the site and its context.

The conditions

96 In Mison and ors v Randwick Municipal Council and ors [1991] 191 NSWLR 734, the Court of Appeal held that if a condition imposed on a development consent has the effect of imposing conditions that leave open the possibility that the development will be significantly different from the development for which application was made, then the consent is not a consent to the application. Also, if a condition leaves for later decision an important aspect of the development, which would alter the proposed development in a fundamental respect, the consent cannot finally be determined.

97 In Weal v Bathurst City Council and or [2000] NSWCA 88, the Court of Appeal held that the facility of a deferred commencement consent did not free the council from the obligation to consider all relevant matters as required by s 90(1) or s 79C as it currently exists.

98 A fundamental consideration in the assessment of the traffic impacts by Mr Brown and Mr Rogers is the operation at Barleigh Ranch. This property was visited on the site view. It is used as a motorcycle race facility with a number of different tracks and configurations. Surveys undertaken by Mr Brown at Barleigh Ranch indicated events at this site attracted 1400 vehicles on 1 August 2004, 894 vehicles on 28 May 2006 and 770 vehicles on the 16 July 2006. No details were provided on the days and times it operates or the conditions of any consent. The evidence on the operation of Barleigh Ranch was limited to a comment that its operation was generally uncontrolled by any conditions of development consent.

99 Taking into consideration the lack of evidence available on the operation of Barleigh Ranch, the potential levels of traffic generated by Barleigh Ranch, the absence of any form of agreement that Barleigh Ranch would participate in programming of events to ensure that the concurrent use of both operations does not exceed 1400 vehicles and importantly the fundamental and undisputed need to coordinate traffic levels at Barleigh Ranch and events at the site, I do not accept that proposed condition 17 (or requirement (g) in the TMP) can be reasonably imposed. The ability of the applicant to comply with this requirement is uncertain at best. Satisfaction of this requirement relies on the willingness of a person not associated with the proposed development to participate in the joint programming of events at the two venues. In the absence of any evidence to suggest there is a possibility or a likelihood that an agreement can reached; it would be inappropriate to impose such a requirement. This leaves open the real possibility that the development cannot operate in a safe manner. Without an agreement, the proposed development will be significantly different in terms of traffic and safety impacts from the development that relied on limiting vehicle movements at the Italia Road and Pacific Highway intersection.

100 Also, the requirement that matters be addressed through a deferred commencement condition requiring the preparation of a TMP, in my view leaves for a later decision important aspects of the development, which could alter the proposed development in a fundamental respect. Matters such as the identification of management strategies to protect the travelling public from risks arising from the proposed development, the identification of physical works within the local road network and the identification of direct and indirect impacts on the local road network and measures to ensure that the roadwork is not degraded by the proposed development are matters that need to be known before consent could be granted. The extent of the requirements is unknown and could potentially be prohibitive, in the same way as the construction of a grade-separated intersection was seen to be prohibitive by the applicant. The requirement that these matters be submitted for approval of the council and the RTA does not overcome the fundamental need for the applicant to identify the impacts of the proposed development and provide measures to address these impacts.

The Traffic Management Plan

101 The appropriateness of a Management Plan for a particular use and situation is addressed in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 where the following questions should be considered:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

102 It was agreed that any discussion on conditions would be left to a later stage if consent was to be granted however the hours of operation sought by the applicant (see par 11) are inconsistent with those suggested in the joint report of Mr Brown and Mr Rogers where conditions 15 to 18 seek to limit the number and type of events to avoid unacceptable traffic impacts. This would not be a matter that would warrant the refusal of the application however the inconsistency in the hours of operation is currently unacceptable.

2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

103 One important component of the TMP is the requirement that some vehicles are directed left onto Italia Road to minimise the effects of movements onto the Pacific Highway. Mr Webster states that while 34% of the vehicles turned left onto Italia Road during a demonstration event on 28 May 2006 (using vehicles leaving an event at Barleigh Ranch) two previous surveys have indicated only 16% and 27% of vehicles turning left onto Italia Road. Mr Webster credits the intensive level of traffic control at the demonstration event for the higher 34% survey figure. Mr Brown's evidence is that if 16% of vehicles turned left onto Italia Road (based on 3500 patrons or 1400 vehicles) then there would not be an unacceptable impact on the Italia Road and Pacific Highway intersection.

104 Another consequence of the proposal is the likely queuing when patrons are leaving the site after an event. At the demonstration event, Mr Webster observed queues of several hundred metres leading to extensive delays for cars. He also observed that traffic was held back within the site so as to delay the traffic entering Italia Road. In his opinion, this resulted in shorter queues at the Pacific Highway.

105 I accept that there is some merit in Mr Webster’s evidence that when the proposed development becomes operational, it may not be reasonable to expect a significant number of patrons leaving the site to turn left on Italia Road away from the Pacific Highway, unless those patrons were heading towards Maitland or another locality in that direction. As suggested by Mr Webster, if events are effectively marketed in Newcastle and Lake Macquarie, which have much larger residential catchments, more traffic is likely to be attracted to the Pacific Highway. As I understand, and unless directed by police (and there was no evidence to suggest that police would be directing traffic from the site) or appropriately signposted, there is no legal obligation for drivers to follow a direction by traffic control staff. While it is likely that a higher percentage of drivers will follow directions given by traffic control staff, there is still the possibility a percentage will not because of the inconvenience of being sent in a direction that will provide a longer and more circuitous route to their destination. As suggested by Mr Webster, this may also promote unsafe movements by drivers to regain their preferred route.

106 The issue of extensive queuing is not a matter that would support the refusal of the application providing that it was safe and did not unacceptably impact on traffic flows. It a phenomenon that is consistent with most major sporting events where vehicles are the predominant form of access. I am also not satisfied that poor driver behaviour from a limited number of drivers would be a reason to refuse the application.

3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

107 Yes – site observations during events could establish any breaches of the TMP.

4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

108 The evidence of Mr Brown and Mr Rogers was that that if the TMP is not satisfactorily implemented then the proposed development could result in adverse traffic impacts. On this basis, it would be reasonable to conclude that there needs to be very substantial, if not absolute compliance with the TMP to achieve an acceptable traffic and safety outcome.

109 In my view, there are a number of fatal flaws in the TMP that ensure that it cannot satisfy this requirement. Importantly, and as previously stated (see pars 98 to 100) I do not accept that a number of the deferred commencement conditions and operational conditions can be properly imposed.

5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

110 The implementation of the TMP would generally be through the staff of the applicant. Patrons would not necessarily need to know the requirements of the TMP.

6. Is the Management Plan to be enforced as a condition of consent?

111 Yes.

7. Does the Management Plan contain complaint management procedures?

112 No but additional requirements could be added to the TMP.

8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

113 No but additional requirements could be added to the TMP.

The evidence

114 The significant difference between Mr Staniland and Mr Wright and Mr Jamieson and Mr Serberry was the adequacy of the information provided by the applicant. Mr Staniland provided a preliminary design for stormwater management. He identifies the key design principles as of this preliminary design as:

sub-catchments to be formed to isolate and separate clean and contaminated areas for appropriate treatment of stormwater run-off
facilities to be constructed to collect and convey stormwater run-off from isolated sub catchments,
table drains to catch run-off from the racetracks,
treatment of collected stormwater run-off through settlement dams, gross pollutant traps and hydrocarbon separators,
disturbance to natural vegetated areas to be minimised with some areas revegetated and rehabilitated,
stormwater detention will not be required because of the receiving facility of low-lying areas at Grahamstown Dam, and
a Management Plan is to be provided for the operation and maintenance of stormwater management facilities.

115 Mr Staniland notes that the erosion and sediment controls are the subject of a specific design. Familiarity with the usual engineering practice and approximate calculations are sufficient, in his opinion, to confirm the adequacy of the proposed facilities. As soils on the site have been identified as erodable colluvial soils and not dispersive soils, then Mr Staniland states that sediment can be addressed through appropriately sized sediment retention basins with flocculation. Site soils will not be exposed as covering pavement layers will be employed in trafficked areas, such as of access roads and car parking and other areas will be topsoiled and vegetated.

116 Mr Wright provides a Primary/Generic Erosion and Sediment Control Plan (the ESCP) as part of his evidence. The purpose of the ESCP is to provide a generic, broad-based plan to outline the intentions in fundamental principles that will be followed in the planning and implementation of sediment control measures for the entire project. It will be supplemented by progressive plans detailing individual control measures on an area by area or stage by stage basis.

117 Mr Jamieson’s principal concern is that it has not been demonstrated that the development can be undertaken in an acceptable manner particularly in regard to treatment of run-off during the construction phase but also during the ongoing operation of the site. The site is within Grahamstown Dam catchment, which is Newcastle's principal water supply storage and inspections of the site have indicated substantial amount of sediment already being carried from the site to Grahamstown Dam. He identifies the soils on and adjacent to the site as highly erodable and dispersive.

118 In Mr Jamieson’s assessment, the proposed development involves the disturbance of at least 26 ha of currently vegetated land with extensive earthworks and surface disturbance. The extent of this disturbance has not been adequately defined, nor has the extent of dispersive subsoil material and the amount of topsoil available to rehabilitate the site. He calculates that the proposed sediment dam sizing is significantly less than will be required to adequately control run-off from the site by a factor of 3 or 4. This poses a significant constraint to the development as the location of the sediment dams is constrained by the location of the proposed infrastructure and ecological constraints on the site. The significant uncertainty that remains to adequately control the sediment and erosion aspects of the development are not matters that could be addressed with certainty by conditions of consent.

119 Mr Serberry notes that the amended proposal reduces the overall footprint of the development and consequently the potential impacts on stormwater management are reduced slightly however the overall concerns of the Hunter Water Corporation remain largely unchanged from previous submissions. In accepting that the information on the amended plans is now more comprehensive than in the original proposal, concerns remain over contaminants leaving the site and finding their way into Grahamstown Dam. Mr Serberry’s concerns can be summarised as:

the site is already subject to considerable erosion impacts during rain events,
geotechnical assessment and soil characteristics, the extent of disturbance and earthworks staging should all be investigated prior to any approval,
there has been no assessment made of likely nutrient export from the site once it is operational. For example, fertiliser will be required to establish a stable vegetative cover on the low fertility soils that exist on the site.
Findings

120 The contest between Mr Jamieson and Mr Serberry and Mr Staniland and Mr Wright centres largely on the amount of detail needed to be provided to properly address the issues of erosion and sedimentation control. There was agreement that erosion and sediment control facilities should be based on the Landcom document Managing Urban Stormwater-Soils and Construction (March 2004).

121 Mr Jamieson, Mr Staniland and Mr Wright have considerable experience in the development of land and the requirements of Managing Urban Stormwater-Soils and Construction. There is no valid basis to prefer one expert over another based on their qualifications or experience. I am however satisfied that the general approach adopted by Mr Jamieson and Mr Serberry should be preferred in this case. The approach used by Mr Staniland and Mr Wright may be suitable in a large number of applications however I do not accept that it is appropriate in this case because of constraints imposed by the site and its context. These constraints principally relate to the need to confine all construction activities to within the areas to be disturbed within the site (and to avoid the vegetated and EEC areas) and the importance of protecting the Grahamstown Dam from sedimentation during construction and run-off post construction.

122 The evidence of Mr Jamieson on the difficulty in providing sedimentation basins of sufficient size based on the requirements in Managing Urban Stormwater-Soils and Construction was, in my view, sufficient to raise concern over the approach of Mr Staniland and Mr Wright of progressive plans detailing individual control measures on an area by area or stage by stage basis.

123 I have given little weight to the General Terms of Approval issued by the then Department of Natural Resources on 26 May 2003. These are as the name implies, general in nature and do not adequately address the particular characteristics of the site and its context.

124 On the basis of the concerns raised by Mr Jamieson and Mr Serberry, I accept that this issue cannot properly be addressed through operational conditions or deferred conditions of consent.

125 It was suggested by Mr Smith that as a racetrack is a permissible use within the zone then it should be seen as a legitimate rural use and therefore there is a presumption that it is appropriate for the site. While this argument is not without merit, up to a point, the weight to be given to a permissible use is addressed in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (12 August 2004) where (at par 117) it states:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see

1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (

(1953) 9 LGR(NSW) 163;

(1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

126 I do not accept the proposition that because a race track is a permissible use within the zone then this somehow suggests that the proposed development should be given some greater entitlement to an approval. To adopt such a stance effectively ignores the words "in some form" in BGP Properties. It may be that a race track is suitable for the site but it does not follow that all race tracks are suitable. It is clearly a question of fact and degree that is appropriately considered through the zone objectives in cl 10(2) and the wider considerations in s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act).

127 The first precondition in cl 10(2) requires consideration of whether the proposed development maintain(s) the rural character of the area and the second precondition requires consideration of whether the proposed development promotes the efficient and sustainable utilisation of rural land and resources. A finding of inconsistency for either precondition must see the appeal dismissed and a finding of consistency would enliven the power to grant development consent subject to a merit assessment. The objectives provide a number of tests on how this is to be considered (Objectives (a) to (e)).

128 There was no suggestion that the site or surrounding area was crop or pasture agricultural land so the second precondition relating to sustainable utilisation of rural land and resources is not particularly relevant in this case.

129 As a starting point in determining whether the proposed development is consistent with the zone objectives, it is clear from the objectives that the 1(a) zone gives primacy to the agricultural use of land. As a range of non-rural land uses are permissible in the zone, the zone objectives provide that these uses must be compatible with rural land uses and not adversely affect the environment or the amenity of the locality (Objective (a)).

130 The rural character of the area is predominantly made up of large parcels of land, some with considerable vegetation and others with less vegetation. Rural residential development is the dominant form of land use in the wider area with non- rural residential uses such as the quarry, the landscape supply establishment, the paint ball recreational facility and Barleigh Ranch creating a more mixed character in the immediate area of the site.

131 I am satisfied that the proposed development does not maintain the rural character of the area for a number of reasons. Firstly, the proposed development has impacts that extend well beyond the immediate area and as such it is not appropriate to consider the proposed development only against the uses in the immediate area, such as the quarry, the landscape supply establishment, the paint ball recreational facility and Barleigh Ranch. The rural residential uses are equally relevant, if not more relevant because of the higher potential for disturbance and the higher levels of amenity expected for this form of land use. For example, the rural residential receptors used for the noise assessment were in excess of 1 km from the site.

132 Secondly, the traffic generated by the proposed development will have impacts on Italia Road and other local streets that provide access to the rural residential development in the area. Even if it could be guaranteed that the TMP could be implemented, at least 14% of a potential 1400 vehicles will be directed onto Italia Road up to 26 times per year. Compared to the likely existing levels of traffic it is a considerable increase in traffic on local rural roads. For an area that is zoned Rural 1(a) and given the objectives of the zone, the anticipated character would generally be agricultural in nature. In my view, the amount of traffic generated on the local roads would adversely affect the amenity of the locality, even though the levels of traffic may be within the environmental capacity of the roads.

133 Thirdly, the sound barriers (particularly those located directly adjoining Killaloe Lane) will be clearly visible and create an unacceptable visual presence in the locality. The barriers will be a discordant and an incompatible feature in the rural character of the area even considering the mixed character of the immediate area. In my view, the extent, height and location would adversely affect the amenity of the locality.

134 Fourthly, the proposed hours of operation would adversely affect the amenity of the area. It would be totally inappropriate to allow the proposed development to potentially operate from 9am to 10 pm, 7 days a week in an area that has rural residential developments. Even with the erection of noise barriers it is likely that noise will still be audible at the rural residential receptors, even though the noise levels may be within the Environmental Protection Authority guidelines.

135 Fifthly, the proposed development is incompatible with the rural land uses because of the unresolved issues over the combined use of the intersection of Italia Road and the Pacific Highway by vehicles from the proposed development and heavy vehicles from the landscape supply establishment.

136 For the reasons in the preceding paragraphs, I find that the proposed development, pursuant to cl 10(2) of LEP 2000 is inconsistent with the 1(a) zone objective in that it does not maintain the rural character of the area, as it is incompatible with rural land uses and unacceptably affects the amenity of the locality (Objective (a)).

137 The Orders of the Court are:

______________

G T Brown

Commissioner of the Court

CITATION:	Motorplex v Port Stephens Council and anor [No 3] [2008] NSWLEC 1280
PARTIES:	APPLICANT Motorplex Australia Pty Limited FIRST RESPONDENT Port Stephens Council SECOND RESPONDENT Roads and Traffic Authority of New South Wales
FILE NUMBER(S):	11328 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- inconsistency with the zone objectives, unacceptable impact on flora and fauna, unacceptable noise impacts, traffic and safety impacts, inadequacy of details to properly consider erosion, sediment and surface water impacts.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Port Stephens Local Environmental Plan 2000 Threatened Species Conservation Act 1995 State Environmental Policy No 44
CASES CITED:	Motorplex (Australia) Pty Limited v Port Stephens Council [2007] NSWLEC 74 Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 Mison and ors v Randwick Municipal Council and ors [1991] 191 NSWLR 734 Weal v Bathurst City Council and or [2000] NSWCA 88 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
DATES OF HEARING:	12-16/05/08
DATE OF JUDGMENT:	11 July 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P Lee, Managing Director of Motorplex Australia Pty Limited FIRST RESPONDENT Mr P Larkin, barrister SOLICITORS Sparke Helmore SECOND RESPONDENT Mr R Lancaster, barrister SOLICITORS Roads and Traffic Authority of New South Wales