Naklicki v Baulkham Hills Shire Council

[2004] NSWLEC 1

Land and Environment Court

of New South Wales

CITATION:	Naklicki v Baulkham Hills Shire Council [2004] NSWLEC 1 revised - 16/01/2004
PARTIES:	APPLICANT Peter Nacklicki RESPONDENT Baulkham Hills Shire Council .
FILE NUMBER(S):	11136 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Lack of information to permit assessment of the application Environmental impact of the proposal especially given the presence of a watercourse and gully Impact of the proposal on adjoining property owners .
LEGISLATION CITED:	Baulkham Hills Local Environmental Plan 1991, (BHLEP) Draft Baulkham Hills Local Environmental Plan 200X, (DBHLEP) Development Control Plan No 1 - Rural 1(a), 1(b) and 1(c) zones, (DCP1) Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River (NO2 1997), (SREP20) Rivers and Foreshores Improvement Act 1948, (RFI Act) Environmental Planning and Assessment Act 1979, ss 79C and 97, and Regs 2000 cl 50 .
CASES CITED:
DATES OF HEARING:	5 January 2004
DATE OF JUDGMENT:	01/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Self represented RESPONDENT Ms J M Hughes, solicitor Phillips Fox

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11136 of 2003

Watts C

8 January 2004

Peter Naklicki

Applicant
v

Baulkham Hills Shire Council

Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Baulkham Hills Shire Council (the council) to refuse an integrated development application to fill and landscape land at Lot 126 DP 814445, being No 36 Pitt Town Road, Kenthurst.

2 I visited the land in company with the parties on the early afternoon of the proceedings.

3 I have concluded that the application should fail as a result of inadequate information to permit assessment of the application; the adverse environmental impact of the proposal especially on the watercourse and gully; and the adverse impact of the proposal on adjoining property owners as a result of truck movements along the right of carriageway.

The land

4 The battle-axe parcel of land, which is owned by the applicant, is situated on the southern side of Pitt Town Road and has an area of some 2.307 hectares. It is accessed along a 10m wide right-of-carriageway shared with owners of adjoining properties to the west known as Lots 24 and 25 DP 255801, being Nos 38 and 40 Pitt Town Road, Kenthurst.

5 A deep watercourse running through the land has been dammed to a depth of around 10m and around the edge of the dam are sandstone outcrops and ledges. At the base of the dam wall the remnants of the original gully.

6 Erected on the eastern side of the dam is a three-storey dwelling house and tennis court. Levelling has altered the land and much of the vegetation has been cleared. Some work described in the present development application that was refused by the council on 11 September 2003, has been allegedly carried out.

7 The area is characterised by rural residential properties of around 2 hectares in area. Several nearby houses can be seen from the land.

Relevant planning controls
Baulkham Hills Local Environmental Plan 1991, (BHLEP)

8 Under the provisions of the BHLEP the land is zoned Rural 1(c) zone, and ‘filling of land’ is permissible with consent. However, the proposed land filling is near a watercourse marked blue on the map held by the Department of Infrastructure Planning and Regional Development, (DIPRN) and if that is the case the development would be “integrated” and may need to be considered under Part 3A of the Rivers and Foreshore Improvement Act 1948, (RFI Act). General terms of approval would need to be ascertained under that part, prior to any consent being granted.

9 The objectives for the Rural 1(c) zone of the BHLEP are:

(a) to accommodate rural-residential development that is sympathetic with the environment and minimised risks from natural hazards; and

(b) to provide for a range of activities which are compatible with the rural residential character of the locality; and

(c) to ensure that development in the area does not unreasonably increase demand for public services and public facilities; and

(d) to encourage the preservation of suitable areas for open space purposes.

10 Under the BHLEP ‘filling of land’ means:

...by raising the natural ground level through deposition of clean (uncontaminated) excavated natural, earthy material, such as topsoil, lime, clay or sand, above the natural or pre-existing ground level, in association with a land use for which consent has been grated, where the landfill deposited exceeds one metre in depth or a total area of 100m2, but does not include top dressing to an average depth of 50mm or less.

11 Clause 9(2) of the BHLEP states:

Except as otherwise provided by the plan, consent must not be granted for development unless the consent authority is satisfied that the development is consistent with one or more of the aims and objectives of this plan or one or more of the objectives of the zone within which it will be carried out.
Draft Baulkham Hills Local Environmental Plan 200X, (DBHLEP)

12 This DBHLEP has been adopted by the council and has been forwarded to DIPNR for referral to the Minister to be made. Under this instrument the land also is zoned Rural 1(c) and ‘filling of land’ is permissible with consent.

13 The objectives for the Rural 1(c) zone under the DBHLEP are:

a) to accommodate rural-residential development that is sympathetic with the environment and minimised risks from natural hazards; and
b) to provide for a range of activities which are compatible with the rural residential character of the locality; and
c) to ensure that development in the area does not unreasonably increase demand for public services and public facilities; and
d) to ensure that development is designed and carried out having regard to adjoining land uses and the natural environment; and
e) to ensure that development is designed and carried out having regard to the rural and heritage character of the surrounding area; and
f) to encourage the preservation of suitable areas for open space purposes.

14 A definition under the DBHLEP for filling of land is similar to that in para 10 above.

15 Clause 9(2) of the DBHLEP states:

Except as otherwise provided by the plan, consent must not be granted for development unless the consent authority is satisfied that the development is consistent with one or more of the aims and objectives of this plan and is not contrary to the objectives of the zone within which it will be carried out. [Court’s emphasis added].

Development Control Plan No 1-Rural 1(a), 1(b) and 1(c) zones, (DCP1)

16 DCP1 was adopted on 11 December 1990, came into force on 1 March 1991 and was amended. The objectives of the DCP1 are:

• To provide guidelines for the development of rural areas in the Shire;
• To ensure that development in rural areas has regard to the agricultural and environmental qualities of the land; and
• To accommodate development which is compatible with the rural environment, does not unreasonably increase the demand for services and minimises risks from natural hazards.

17 There are no specific requirements for the filling of land within DCP1.

Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River (No2 1997), (SREP20)

18 The land is within the boundaries of SREP20 and filling of land is permissible with consent of the council as consent authority. The aim of this plan is to:

...protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context.

19 Filling of land means:

Filling of land including submerged aquatic land, by raising the ground level through disposal of spoil from any landfill method (such as mining, dredging or refuse dumping), whether or not to enable the construction of a road or the erection of buildings or pylons or any other structure, where filling exceeds 1 metre in depth or an area of 100 square metres.

Rivers and Foreshores Improvement Act 1948, (RFI Act)

20 The RFI Act applies to protected land such as that near the watercourse and consent under Part 3A may be required. [Note: See letter from DIPNR dated 11 December 2003 reference No ERM 403/04].

The proposal and its history

21 Integrated development application No 403/2004/HA was lodged with the respondent council on 5 August 2003, to fill and landscape the land.

22 The application was lodged in response to Class 4 proceedings No 40870 of 2002 and Court Order No 1(iii) dated 11 July 2003 which required the respondent (Mr P Naklicki) “…to lodge with the council by 11 August 2003 a development application for the landscaping and landfill of the land including the utilisation of the existing landfill deposited on the respondent’s land.”

23 The proposal includes filling of part of the existing dam and the area surrounding the dam and labelled 1 to 7 and A and B on the plans prepared Bowdens Group, to increase the area of the site for landscaping and general enjoyment. [Note: Exhibit 3 Attachment 8, Drawing No PT01B last amended 29.08.01]

• Areas 1 to 4: Placement of fill on the edges of the existing dam, and creation of two islands;
• Areas 5 to 7: Placement of fill to cover the woodpiles in the gully at the southern end of the site to remove the threat from bushfires and increase useable area;
• Areas A and B: Enlargement of island in the middle of the dam, (Proposed Area 2).

24 The council found the application unclear as to whether Areas A and B are to be carried out at all. It is stated in the application that these areas are to be completed “…only after the completion of areas 1, 2, 3 and 4 will it be seen to be necessary or not to complete the overall landscaping plan by incorporating areas A or B.”

25 The applicant estimated the amount of fill required for areas labelled 1 to 7 would be 3,070m3 or 614 truckloads. The applicant also estimated that Area A would require 12,000m3 or 2,400 truckloads and Area B to require 2,800m3 or 560 truckloads of fill to complete. The council calculated that based on the applicant’s estimates that a total of 3,574 truckloads of fill would be necessary to complete the works in areas 1 to 7 and A and B. This would result in 7,148 vehicle movements.

26 No professional report or supporting documentation accompanied the application. However, the council received a site investigation report prepared by Douglas Partners entitled “Materials Classification” dated 28 July 2003.

27 Officers of the council visited the site on 27 October 2003, 1, 19 and 20 November 2003, and reported that unauthorised works were being carried out, including filling the woodpiles in the southern gully and widening [and lowering] the western spillway.

Notification

28 The application was notified to nearby owners and occupants and one adjoining owner made a submission. Concerns expressed by the resident of No 40 Pitt Town Road included:

• Work done without consent;
• Fill being imported;
• The many truck movements over recent years is grossly excessive for a rural residential environment;
• The dam is a natural collection basin and removal of the dam would be detrimental; and
• Extensive changes to the natural vegetation have been made.

The council’s decision

29 By notice dated 11 September 2003 the council refused the application under delegated authority, for seven reasons that are now reflected in the issues.

The hearing

30 The appeal was filed on 15 September 2003.

31 At the hearing the court received written evidence on behalf of the respondent council from Ms K Hansen, town planner of Baulkham Hills Shire Council, [Note: Statement of evidence Exhibit 3].

32 Mr Naklicki, owner and applicant, gave evidence on the site inspection. He said that he needed relatively flat areas around the dam as camping areas. He proposed the construction of islands in the dam to facilitate access to and from the camp ground and the existing dwelling. He said that he did not wish to live in the house and that he would like the ‘Starlight Foundation’ to have access to the property.

The issues

33 On 13 October 2003 the council’s solicitors filed the issues in the case:

1. Whether sufficient information has been submitted in support of the application in accordance with Clause 50 of the Environmental Planning and Assessment Regulation 2000 .

Particulars
(a) The extent of the fill is not justified by the survey plan and is based on estimates alone;
(b) The origin and type of fill is not identified;
(c) The method of compaction, stabilisation and revegetation is unknown and geotechnical advice has not been provided;
(d) An erosion and sediment control plan has not been provided;
(e) The landscape layout and design has not been provided;
(f) A management plan has not been provided to detail the way in which silted dam overflow will be managed;
Sufficient information has not been provided to establish the effect of the proposed works on te remnant natural watercourse and the gully at the southern end of the dam having regard to Sydney Regional Environmental Plan No 20-Hawkesbury Nepean River.

2. Whether sufficient details in relation to landscaping and the utilisation of landfill have been provided as required as required by the order of the Land and Environment Court in proceedings No 40870 of 2002.

3. Whether the proposed development is consistent with objectives (b) and (j), of Baulkham Hills Local Environmental Plan 1991 .

Particulars:
(a) Objective (b) of LEP1991 provides:
"To protect areas from inappropriate development and enhance that local amenity is maintained and enhanced."
(b) Objective (j) of LEP1991 provides:
"To conserve the environmental heritage of the Shire."
(c) The proposed work to areas identified as 5, 6 and 7 is not appropriate development for this site and may adversely impact the environmental quality of the land and adjoining watercourse.

4. Whether the proposal is consistent with aim 2 and objectives (d) and (e) of the Draft Baulkham Hills Local Environmental Plan 200X, (Draft LEP).

Particulars:
(a) Aim 2 of the Draft LEP provides:
"To conserve, manage and enhance our natural and built environment for present and future generations."
(b) Objective (d) of the Draft LEP provides:
"Development should address all natural hazard concerns including flooding, landslip, subsidence..."
(c) Objective (e) of the Draft LEP provides:
"Development should respect, improve and integrate with the local character of the area in which it is located."
(d) The application does not provide sufficient information to address natural hazard concerns for the site, particularly in relation to the natural watercourse.
(e) The proposed work to areas 5, 6 and 7 is not an appropriate rehabilitation of these previously damaged area.

5. Whether the proposed development is consistent with objective (a) of the Rural 1(c) zone, in LEP 1991.

Particulars:
(f) Objective (a) of the Rural 1(c) zone, in LEP 1991 Provides:
"To accommodate rural-residential development that is sympathetic with the environment and minimises the risks from natural hazards."
(g) The proposed works to areas 5, 6 and 7 are unsympathetic with the environment particularly in relation to the natural watercourse.
(h) The lack of information provided with the application makes it uncertain as to whether the development serves to minimise risks from natural hazards.

Amenity
6. Whether the number of truck movements proposed is excessive and will adversely impact upon the amenity of the surrounding area.

Environmental impact
7. Whether the proposed development will have an unacceptable impact on the natural environment by the placement of uncontrolled fill within the dam and within the watercourse.

Objectors/Public interest
8. Issues raised by objectors;

9. Whether the proposed development is in the public interest and should be approved in the circumstances of the case.

34 The following emerged as the salient issues:

• Lack of information to permit assessment of the application;
• Environmental impact of the proposal especially given the presence of a watercourse and gully; and
• Impact of the proposal on adjoining property owners.

The evidence and findings
Lack of information to permit assessment of the application;

35 Under cl 50 of the Environmental Planning and Assessment Regulation 2000 certain documentation is required to accompany any development application. Ms Hansen indicated that, [Note: Exhibit 3 p 21]:

...the application was supported by limited information comprising only a statement of environmental effects with estimated truckloads and fill required, prepared by the applicant and a hand coloured, modified version of a plan dated 28 April 1999, amended 29 August 2001 and 26 November 2002.

36 She considered the documentation that accompanied the application to be insufficient to properly assess the application. I accept that evidence.

37 Despite the deficiency in the documentation Ms Hansen did attempt to assess the application and recommended refusal.

Environmental impact of the proposal especially given the presence of a watercourse and gully;

38 Mr Naklicki on the site inspection indicated that he had covered with fill the fallen trees and wood stockpiles in areas 5, 6 and 7 on the plan, south of the dam wall. His rationale being that the exposed timber would be a fire hazard and covering by fill would eliminate that problem. The statement of environmental effects submitted with the application states, [Class 1 application p 2]:

It is not possible to remove this stockpile, because of the nature of the areas being very steep and rocky. Covering this area with approximately 1m of soil will not only make it safe for walking on, it also does not then provide bush fire fuel.

Ms Hansen stated:

Discarding this vegetation into an area in the vicinity of a watercourse, without any appropriate environmental controls is inappropriate and is not consistent with objective (j) of the LEP1991 with regard to the conservation of the Shire’s environmental heritage.

Mr G Brady noted that in area 6 recent fill buries a section of the natural watercourse and [Note: Exhibit 3 Attachment 14 DIPNR letter dated 11 December 2003 p 1];

...the department as an approval body would not have given General Terms of Approval for this fill and also due to the method of burying organic matter (the tree trunks) under the fill. Over time the organic matter rots and can also be attacked by termites, eventually resulting in slumpage and possible failure of the fill area, causing sedimentation into the creek. Sedimentation is more likely in this case due to the location at the base of the steep and high dam embankment.

In relation to fill areas 5 and 7 he stated,

...both these areas are located in steep natural areas and again it is not regarded as good environmental practice due to the high potential of slippage and adverse sedimentation/ pollution into the creek.

I accept the evidence of Ms Hansen that the proposal would not be consistent with objective (j) of the BHLEP and I would refuse the application on this ground alone.

Impact of the proposal on adjoining property owners.

43 Mr Naklicki, indicated in evidence taken on the site inspection that he had lowered the level of the dam wall by about 600mm and removed trees growing on the wall. He said that he had widened the spillway and removed reeds growing near the spillway.

44 Mr Brady of DIPNR in a letter indicated his concern that the lowering of the dam wall would increase the risk of ‘overtopping’ and this could cause catastrophic failure of the dam wall resulting in significant environmental damage. [Note: Exhibit 3 Attachment 14 DIPNR letter dated 11 December 2003 p 2].

45 Mr Brady observed in the same letter, that the modifications significantly impact on the safety of the whole structure and he strongly recommended that an engineer with appropriate qualifications make recommendations on any necessary remedial works.

46 Anecdotal evidence is that the original dam was built about 30 years ago and has stood the test of time, [Note: Exhibit 3 Attachment 14 DIPNR letter dated 11 December 2003 p 2]. I accept the evidence that to lower the dam wall without fully understanding the hydraulic regime is courting danger. If it fails, flooding might occur on down stream properties. I would refuse the application for this reason as well.

47 The applicant estimated that 3,574 truckloads of fill would be necessary to complete the works in areas 1 to 7 and A and B. As pointed out by Ms Hansen this would represent 7,148 vehicle trips along the shared right of carriageway past dwellings and she stated, [Note: Exhibit 3 p 25]:

...the proposal was not considered to be consistent with objective (b) of the LEP 1991 as the movements of an estimated 3574 truckloads will not maintain and enhance the amenity of the locality, particularly as the site is accessed via a right of carriageway, shared by two other properties.

48 I accept Ms Hansen’s evidence that these truck movements would be likely to adversely impact on the amenity of neighbours. I would refuse the application for reason that it would be likely to be inconsistent with objective (b) of the BHLEP.

RFI Act

49 In a facsimile dated 19 November 2003 Mr Brady stated that, [Note Exhibit 3 Attachment 14, facsimile dated 19 November 2003]:

An inspection of the topographic map for the area indicates that the watercourse [on the land] is a blue line.

Therefore it is suggested that the DA be referred to us as an integrated development...

50 Mr Brady states in relation to area 6 near the watercourse, [Note: Exhibit 3 Attachment 14 DIPNR letter dated 11 December 2003 p 1]:

...that the proposal as presented should have been an integrated development as a Part 3A Permit under the Rivers and Foreshores Improvement Act 1948 may be required.

51 On this basis and if consent were contemplated DIPNR would need to prepare general terms of approval. As these have not been obtained it would be premature to contemplate approval of any part of the present application.

52 There is also likelihood that given the broad definition of ‘river’ under the RFI Act that the dam might be included in that definition and the proposed filling of the dam might need be considered under the RFI Act as being within ‘protected lands’ or ‘protected waters’.

53 For the above reasons, the appeal is dismissed.

Orders

54 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. Integrated development application No 403/2004/HA lodged with the respondent council on 5 August 2003, to fill and landscape the land at Lot 126 DP 814445, being No 36 Pitt Town Road, Kenthurst, is refused consent.
3. The exhibits with the exception of Exhibits 3 and 4 are returned.

S J Watts

sw