Optima Developments Pty Ltd v Gosford City Council

[2003] NSWLEC 263

>

Land and Environment Court

of New South Wales

CITATION:	Optima Developments Pty Ltd v Gosford City Council [2003] NSWLEC 263
PARTIES:	APPLICANT Optima Developments Pty Ltd RESPONDENT Gosford City Council
FILE NUMBER(S):	10180 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- A service station and convenience store - Character of the site and surroundings - Setbacks to streets - Traffic generation - Availability of sewer - Flooding - Objective of the zoning of the land - Potential pollution - Endangered species
LEGISLATION CITED:	Environmental Planning and Assessment Act, 1979; s 97· Gosford Interim Development Order 122· Gosford Local Environmental Plan No. 351
CASES CITED:
DATES OF HEARING:	6, 7, 8, 18 August 2003
DATE OF JUDGMENT:	09/03/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Baird (solicitor) SOLICITORS Maddocks RESPONDENT Mr S Berveling (barrister) SOLICITORS P J Donellan

JUDGMENT:

In the Land and
Environment Court
of New South Wales Heard by: Commissioner K G Hoffman
Decision date: 3 September 2003

Optima Developments Pty Ltd

V

Gosford City Council

Judgment

1 This was a class 1 appeal No. 10180 of 2003 between Optima Developments Pty Limited v Gosford City Council in regard to the refusal of consent for a service station and convenience store at lot 10 DP878163 Empire Bay Drive, Empire Bay.

2 The land is a large triangular lot of about 2.4 ha bounded by Poole Close with approximately 418 m frontage, Wards Hill Road with approximately 123 m frontage, and Empire Bay Drive with approximately 361 m frontage. The proposal occupies part of the eastern end of the site adjacent Wards Hill Road.

The surroundings

3 There is a drain beside Wards Hill Road that takes much of the local stormwater runoff down to pipes under Empire Bay Drive. The evidence was that the pipes were not large enough for big storms and in those events Empire Bay Road acted as a weir. The water discharged into wetlands on the north side of the road and thence to Cockle Bay itself. The wetlands, an area about 17 ha, had been dedicated to council in the 1980s as part of an agreement with the council at the time of zoning the subject site, via an exceptions clause in the statute, to permit a service station, tourist units and ancillary facilities like refreshment rooms.

4 Other land under the same ownership at the time was zoned for hobby farm subdivision. There was a tavern in Poole Close opposite the site and hobby farms on land south of Poole Close. The topography sloped up southwards to the bushland ridges of hills between Empire Bay Drive and the ocean side hamlet of Killcare, and the Bouddi National Park.

The zoning

5 The site was zoned 7C(2) Conservation and Scenic Protection under the applicable instrument, Interim Development Order 122. The wetland on the north side of Empire Bay Drive had been classified as part of the Sydney Coastal Estuary Swamp Forest containing endangered ecological communities, one species of which, the swamp mahogany tree, featured large in evidence. The wetland was also classified under State Environmental Planning Policy 14 and was an area to be protected and conserved. The SEPP 14 area did not extend across Empire Bay Drive to the subject property.

The proposal

6 In addition to the watercourse beside Wards Hill Road there were two table drains through the land from Poole Close to a table drain beside Empire Bay Drive. At the end of each table drain was another pipe under the road to carry water across to the wetland. As previously noted, the table drain filled up and overflowed in major storms, but the site itself did not flood in the one in one hundred year design storm events.

7 The proposal included an earth bund along part of Poole Close on the site to enable water flowing to the central table drain to be diverted partly to the Wards Hill Road drain and partly to a new table drain across the site on the west side of the service station. There was to be bushland regeneration along the Wards Hill boundary, along Poole Close, along the bund, and in the new table drain across the site. Where the new table drain reached Empire Bay Drive, the bush regeneration extended along the Empire Bay Drive boundary of the land, past the western watercourse on the site and joined up with an area of natural bushland to be retained on the last 100 m of the land between Empire Bay Drive and Poole Close.

8 The bushland regeneration was to be in the form of an ecological mix of endemic species including swamp mahogany trees. The evidence from authoritative studies of the area showed that the western end of the site formed a faunal corridor from the ridge top bushland to the south, connecting it northwards to the wetland. In order to provide sustainable habitat for the flora, fauna and ecosystems of the area, this corridor was important.

9 There was existing regrowth of young swamp mahogany trees along the table drains of the site. The middle watercourse was proposed to be filled to create a level area east of the concrete driveways and parking areas of the service station. In that area down near the intersection of Empire Bay Drive and Wards Hill Road a detention pond was to be constructed to hold runoff from the service station from the one in one hundred year design storm. The water would then be discharged from the detention pond into a depression leading to the pipes under Empire Bay Drive.

10 In regard to vehicle access, the service station had a left turn entry and left turn exit to Empire Bay Drive. A new central concrete median in the road would prevent right turns into the site except by taking the existing Wards Hill Road intersection and thence via Poole Close into the site. Poole Close was terminated at its western end to prevent through traffic, so its only existing traffic was to the tavern and to a few hobby farms off Belrose Place, another cul-de-sac, midway along the Close. Wards Hill Road was to have slip lanes put in at Poole Close and Empire Bay Drive to facilitate the additional turning movements caused by the proposal.

11 The service station incorporated a convenience store and the parties were in agreement that the latter largely comprised the uses expected under the definition of service station and ancillary uses as incorporated in the statute. The proposal was permissible with consent of the responsible authority.

12 The convenience store and service station counter area were just south of the centre line of the site towards Poole Close. The canopy over the fuel dispenser area came to about 11 m from the Empire Bay Road boundary. The table drain beside the road was about 10 m wide, giving about 20 m from the bitumen to the canopy. The canopy and the store buildings were angled to the northeast so that cars coming from that direction, around a curve in Empire Bay Drive, would see it almost square on.

13 Cars coming from the west from Empire Bay would not see the buildings until almost opposite due to the bushland regeneration of the new table drain through the site. There was to be a single pylon sign to clearly identify the service station in a position noted on the plans, but there was no sign proposed in the subject development application.

The issues

14 The issues in the appeal were whether or not the development should be approved or refused having regard to:

(a) the objectives of the zoning of the land 7C(2) under Interim Development Order 122 and Local Environmental Plan 351 ;
(b) the provisions of clause 5.4 of IDO 122 requiring the consent authority to take into consideration the character of the development site and the surrounding area. Particulars. The proposed development is inconsistent with the character that distinguishes the surrounding area;
(c) the failure of the proposed development to comply with the provisions of Development Control Plan 98. Particularly the development fails to comply with setback requirements of 30 m from Empire Bay Drive in that the proposed building is 25 m from Empire Bay Drive in part and the canopy over the proposed petrol pumps is set back 20 m at its closest point;
(d) the excessive traffic on Wards Hill Road and pedestrian hazards that will be created at the intersection of Poole Close and Wards Hill Road, and in Poole Close itself;
(e) there is no sewer available to the subject site;
(f) the proposed development contains a shop which is not ancillary to the service station, resulting in the development being prohibited;
(g) the susceptibility of the subject land to flooding.

15 By the time of the hearing, issue (f) had been resolved as previously described and in fact exhibit 16 contained joint statements by both parties’ experts that resolved all of the other issues subject to draft conditions of consent. These were resolved progressively during the hearing in exhibits 17, 23, 27 and in exhibits K, L, Q, T and W.

16 The experts for the respondent were:

· Mr G Poll, engineering assistant on flooding and drainage,

· Mr R Brocklehurst, design officer, water and sewerage,

· Mr J Bruton, senior town planner,

· Mr J Mahoney, traffic engineer,

· Mr R Bowen, officer for on site sewage treatment and effluent pumpout, tanker removal systems.

17 There was evidence in exhibit 19 of the satisfaction of the New South Wales Rural Fire Service with the bushfire protection measures of the proposal.

18 The experts for the applicant were:

· Mr H Williams, civil engineer and flooding and drainage engineer,

· Mr C Oliver, town planner,

· Mr D Thompson, traffic planner,

· Mr J Travers, landscape ecologist and specialist in bushfire and environmental management,

· Mr J Sgro, designer and builder of service stations and their specialised equipment.

19 Mr Bruton, Mr Thompson and Mr Oliver also gave oral evidence in reply.

20 The respondent’s other witnesses were:

· Mrs R Meldrum, objector of 56 Warinda Road, Somersby and representative of the Central Coast Community Environmental Network Incorporated. Mrs Meldrum also held a Bachelor of Science degree in sustainable resource management.

· Mr J Jordan, objector and resident of 12 Manly View Road, Killcare,

· Mrs C Wilde, objector and resident of lot 10 Belrose Place, Empire Bay. Her property was a 100 m or so from the subject property.

Mrs F M Gunther, objector and resident of 18 Wagstaff Avenue, Wagstaff, and representative of the Pretty Beach Wagstaff and District Progress Association.

· Mr L Walker, objector and resident of 14 Noble Road, Killcare and representative of the Killcare Wagstaff Trust Incorporated, and

· Mrs C Warwick, objector and resident of 8 Wandi Close, Bensville.

The Evidence

21 Mrs Meldrum’s concerns were principally that because there was regrowth of swamp forest species on the subject property, especially swamp mahogany, it was an implicit part of the Sydney Coastal Estuary Swamp Forest complex which was endangered and protected, and a species impact statement was required. She considered the eight part test carried out by Mr Travers under s 5A of the Environmental Planning and Assessment Act 1979 was inadequate when it found there was no likelihood of there being a significant effect on any threatened species, populations or ecological communities or their habitats. She said the flora and fauna survey was done at the wrong time of year and there were only two nights of trapping carried out. She said the vegetation, especially the eucalyptus robusta, regenerating on site and a few large surviving mature trees provided habitat on site for endangered and vulnerable species. She referred to sightings of glossy black cockatoos on Mrs Wilde’s property and recovery plans for yellow bellied glider habitat in the area.

22 Mrs Meldrum regarded the whole site a wildlife corridor, not just the western end identified in the 1996 council environmental study of the area by Robert Payne. She believed the revegetation buffers proposed by the applicant were too narrow to act as wildlife corridors and would need to be at least 50 m wide, and a full list of endemic species planted to maintain the ecological complex of the swamp forest. She was also concerned that acid sulphate soils would be encountered in the excavation for the fuel tanks of the service station, and that increased nutrient and sediment loads and possible pollution from the development would enter the drains, pass under Empire Bay Drive and pollute the SEPP 14 wetlands to the north.

23 Mr Jordan was concerned over the size of the proposal, with forty-eight fuel hoses at eight dispensers, and a convenience store and carwash of about 58 m2. He said it was too close to Empire Bay Drive as there was a 30 m setback requirement in the council controls. The two bulk fuel tanks would have two hundred and thirty thousand litres in a hole 30 m by 10 m by 6 m deep, he said. Ground water in the area was only 2 m down. He was concerned of ground water contamination from fuel spills which must affect the wetlands and waterways. The Cockle Bay, Bensfield and Empire Bay waters were important fish and crustacean growing areas. They would be affected too. He had experience with fractured fuel tanks and believed any spill could impact the wetlands irreparably. He agreed in cross-examination he had no knowledge of up to date bulk fuel tank technology and its protective designs.

24 Mrs Wilde said the 30 m setback to Empire Bay Drive had been applied to her property as well as others in the area and should be applied to the proposal. She could not see why it should not apply, especially since it was such a large installation. Protection of the local scenic quality, if nothing else, was a major purpose of the statutes and controls, and the proposal would be an ugly, large development along a scenic main road through the bushland. The local pre-school and caravan park also had to observe the 30 m setback so they were not visible.

25 She also saw the regrowth of swamp mahogany on the site and said they were protected species that should be preserved. She confirmed sightings of glossy black cockatoo. She said the council studies of 1996 that found the site had no environmental significance were out of date due to the swamp mahogany regrowth. Having lived through two major bushfires, Mrs Wilde was very concerned about the bushfires igniting the service station and causing a catastrophe. Also her research had shown that fuel spillages occurred in New South Wales at the rate of about seven thousand seven hundred per annum.

26 Local traffic increase and pedestrian safety were other concerns, especially for school children who used Poole Close to walk to Wards Hill Road, which had to be crossed to get to a bus stop, and then Empire Bay Drive had to be crossed to get to another bus stop. There were about 30 children using this route each day and the traffic peak of the service station was 200 - 240 vehicles per hour. There was grave potentials for accidents she feared.

27 Her attention was drawn to the New South Wales Fire Service letter saying the proposal was acceptable. She believed there were new guidelines to come out that would mean the new buffer bush regeneration areas proposed would have to be removed but she had no notification of that, nor did Gosford Council.

28 Mrs Wilde was also concerned that the development application showed two other cleared areas on the site, and the Court saw on the view that they existed as cleared or sparsely shrubbed areas. The Court saw on the view and on the plans that they were nominated as future development sites with subdivision. The applicant said they were not part of this application and deleted the markings from the plans.

29 Mrs Gunther said her main concerns were scenic quality, sustainability and maintaining the ecology of the area, including oyster farming and fishing. The wetland north of Empire Bay Road was of great importance to the area on all those counts. In regard to potential pollution, she said that connection to the sewer was only four years away on council’s current programme and the development should wait until then so it could be connected and not have on site treatment.

30 She said the long time residents knew that the subject site was originally part of the watercourse leading down to the wetland and the original road through the area was via Wards Hill Road and Poole Close.

31 The section of Empire Bay Drive past the site was a new construction, and it and the site had been filled. Mrs Gunther had looked at Development Control Plan 114 and concluded the 30 m setback was from roads and drainage easements, and she regarded the existing table drains through the site were drainage easements. That combined with Development Control Plan 89’s requirements for buffers to give scenic protection meant very little of the land could be built on.

32 She acknowledged the council had zoned the land to allow a service station, but said this proposal was so large it was about the most intrusive thing she could imagine. She did not believe Gosford Council envisaged something so big when the rezoning was done. Also the notation, about subdivision and future development deleted from the plans, made her fear future additional development that would turn the land into a shopping strip or commercial strip like the one at Blackwall Mountain on Memorial Avenue that she regarded as quite ugly.

33 She thought the changes to the project were cosmetic only and it was just too big. She shared the concerns of the other objectors. In the end she agreed if all the draft conditions could be complied with, the proposal would be better than she feared.

34 Mr Walker was concerned about fuel spillage, fire from the site, or bushfire to the site and the resultant danger to the day care facility, the hotel and nearby residents and school children. He was also concerned about local traffic increases and danger to pedestrians.

35 The protection of the wetland and the protection of the scenic beauty of the Wards Hill, Empire Bay Drive intersection was also a matter of concern because he considered it to be the gateway to the Bouddi National Park. He thought the precautionary principle should apply. Also he regularly experience queued traffic now at peak times at the intersection as long rows of cars sped to or away from Woy Woy due to train commuters. He thought the intersection was dangerous enough without the extra turning movements caused by the service station.

36 Mrs Warwick objected to the proposed 24 hour operation of the service station, and its isolated location would make it a likely target for hold-ups or ram raids. The nearest police stations were at Woy Woy or Terrigal, about half an hour travel away. Along with others she did not think another service station was needed. People filled up with petrol when they went shopping. She also believed the site was a wildlife habitat and corridor between the wetland and the ridge top bushland. Her experience over many years was the area had high rainfall, and she had often seen the water surcharging across Empire Bay Drive at the Wards Hill Road intersection. Increased runoff could erode the site and expose acid sulphate soils.

37 In consideration of the submissions and evidence, the respondent and applicant agreed to a number of further conditions such as in exhibit T. Areas of the site along the Empire Bay Drive frontage would either have additional planting or existing vegetation retained. This would further soften or screen the proposed buildings.

38 In exhibit 23 a pedestrian path cycleway would be constructed along Poole Close along the entire frontage, as well as kerb and gutter to provide a safe path for school children. There was to be a refuge crossing over Wards Hill Road, a continuation of the pathway to Empire Bay Drive to the bus stop, and another refuge crossing over Empire Bay Drive to the opposite bus stop. This was much safer than the original proposal, which put a pathway along the Empire Bay Drive frontage.

39 The colours of the buildings were confirmed as sandstone coloured and textured blockwork to the exterior walls of the convenience store, service station and carwash, with a hipped roof in slate grey Colorbond. The canopy was to be plain white with no advertising, nor any internal illumination or graphics except for a corporate logo extending 2½ m on either side of the north-western corner of the canopy over the fuel dispensers. This was the closest corner to Empire Bay Drive.

40 Another condition was marked in exhibit L in red. This area was proposed as the buffer bushland regeneration zones together with the wildlife corridor at the western end of the site, and there was to be a s 88B instrument in the council’s draft conditions to be put on the land title as in exhibit 27. This would require any owner or occupant of the land to maintain those areas in accordance with the Bush Management Plan that was to be prepared, and that there must be no filling, alterations of ground surfaces or clearing including underscrubbing in those areas.

41 A comprehensive list of plant and tree species to be used in the bush regenerations was tendered in exhibit V. It included a list of weeds and exotic plants found on site that would be removed.

42 The bulk storage fuel tanks and their monitoring and safety controls were tendered in exhibit J, and a relevant condition in exhibit K.

43 Another condition in exhibit Q added to the failsafe measures of the septic tank storage and pumpout system to create a bunded area to contain any surcharge or spillage from the tank, and to prevent it reaching a watercourse before repairs could be completed.

44 Various changes to the council’s draft conditions were sought in exhibit W which will be dealt with in due course.

Conclusions

45 At the end of the hearing, apart from the wording of some draft conditions, all of the conditions in exhibit 8 had been resolved to the satisfaction of the expert witnesses of both parties. Bearing in mind the expert witness directions of the Court that bound them to advise the Court honestly and objectively from their professional knowledge and not to act as advocates for their clients or employers, this absence of further disputation must be given considerable weight.

46 The Court then considered the evidence in regard to the objectors’ concerns. In regard to the location of the subject land, Gosford Council made a decision many years ago that this land was suited to the development of a service station amongst other uses. The role of the Court in this hearing is not to question the zoning of the statute, that is the role of elected government. The dispute the subject of this appeal is whether this particular application is worthy of approval or should it be refused.

47 The evidence was clear that the subject land is not wetland and is not identified as protected wetland under State Environmental Planning Policy 14. The evidence showed the existence of some regrowth of swamp mahogany on parts of the land does not bring it into the classification as wetland, nor give it SEPP 14 status and protection, nor does it make it part of the rich ecological community of the Sydney Coastal Estuary Swamp Forest Complex.

48 The trees that exist on the site are on filled land that is well above the wetland and the site is not on alluvial soil, so regrowth on the site would never reach the complexity and diversity of the swamp forest.

49 The community and the Court are prudent to be concerned about the potential impact of the proposal on the swamp forest that does lie on the north side of Empire Bay Drive. The council had requested, and the applicant’s expert Mr Travers prepared, an eight part test under s 5A of the Environmental Planning and Assessment Act1979. The Court was satisfied the test was carried out in accordance with all appropriate guidelines and demonstrated the proposal would create no significant impact on the endangered ecological community to the north.

50 Winter was the appropriate time to survey the site for the endangered species in the locality. There were no endangered species of fauna on the site and authoritative reports of them in the locality were at some distance from the site. The parrots seen near the site may well have been yellow tailed black cockatoos as the hearsay heard by Mrs Meldrum, and the observation by Mrs Wilde said the birds had yellow tail feathers amongst the black. The endangered glossy black cockatoo, if it was present, would have been passing through the area, not using it as habit or feeding grounds, in the opinion of Mr Travers.

51 The important part of the site for these purposes was the western end of the site where apparently natural bush remained and it was to be conserved. It was the important link from the swamp forest up to the ridge top bushlands of Bouddi National Park and Killcare.

52 If the remainder of the site was conserved and returned to bushlands, it would only give access to the hotel tavern on the south side of Poole Close, which was largely cleared land, or to the semi-cleared hobby farm properties on the east side of Wards Hill Road.

53 There was a large swamp mahogany on the east end of the site at the entry driveway to the service station off Empire Bay Drive. It was proposed to be removed. Mrs Meldrum was concerned it provided nesting places and would also benefit gliding squirrels as a high point they could glide to and from across Empire Bay Drive from the wetland. The Court might accept this per se, but does that constitute a habitat when it was a lone tall tree? All the other trees around it were low regrowth.

54 The absence of the endangered yellow bellied glider being heard or observed on or near the site during survey and trapping supported a conclusion that it was not habitat. There was nowhere to glide onto from the old large lone tree at the east end in contrast to the west end, where there was the link to bushland on both sides of Empire Bay Drive containing large numbers of tall trees. Also the tree at the east end of the site was senescent as seen on the view, and Mr Travers estimated perhaps had only an eight year life. Conditions of consent required any nesting hollows found on removed trees to be cut off and re-erected on other trees nearby to ensure no reduction in that regard.

55 The evidence showed the peripheral benefit including connectivity to adjacent bushland that the existing regrowth trees on the site might give to the swamp forest to the north and its flora and fauna should be maintained and increased by the bushland regeneration buffers and weed removal proposed in the application. Swamp mahoganies removed would be replaced four to one in the revegetation area, and would be supplemented by endemic bushland species and, if the council condition was imposed, maintained into the future by s 88 B instrument on title.

56 Mr Travers conceded that the existing regrowth swamp mahoganies on the east side of the service station driveways and parking areas need not be removed. They would survive if the existing table drain, the one to be removed, was filled with appropriate soils. The Court has formed the opinion this should be done.

57 Overall, the Court was satisfied that there was no ecological or flora or fauna evidence that would justify precluding the site from development of an appropriate form and size of service station and ancillary uses.

58 In looking at the proposed building works and their location, the evidence was that the site does not flood in the one in one hundred year storm event, which is the accepted design standard for that issue. The table drains beside and through the site do surcharge due to the embankment of Empire Bay Drive creating an effect like a dam or a detention pond during heavy rainfall. However, this surcharge will not flood the site of the proposed service station. What are called sheet overland stormwater flows will be prevented from crossing the service station site by the kerb and gutter in Poole Close, and the earthen berm or low embankment along the Poole Close boundary. It will divert sheet flows to either the Wards Hill or the new table drains. That will minimise on site materials and potential pollutants being swept downstream towards the wetlands.

59 The general roof and surface drainage of the service station area goes to a detention pond, previously referred to, that holds water and slowly releases it into the table drains and avoids increasing any surcharge or soil erosion.

60 The areas of serious potential pollution are the fuel dispenser area, the fuel storage tanks, the fuel storage tanks refill point, the carwash and the sewer pumpout storage system.

61 The carwash is an enclosed space and recycles most of its water. Any discharges will pass through a filter where pollutants are collected for disposal by waste collection.

62 The fuel dispenser area is under the canopy and has separate drainage to the rest of the site and drains to a coalescing plate separator or filter inside the building. This filter takes out pollutants and they are also collected in a sludge tank for disposal by waste collection.

63 There are detector systems to be installed that allow the station staff to be alerted to any presence of petroleum in the drainage sumps under the canopy so that a check can be made immediately to see if the spill is only from a careless customer spilling a small amount from a hose, or if a fuel dispenser is malfunctioning. There are emergency shut off buttons to cut power to the dispensers placed at strategic locations.

64 The fuel dispensers themselves to not contain pumps. The pumps are at the bulk storage tanks. This provides additional safety because the major working components are not in a position to be damaged by collision with a vehicle. Each fuel dispenser has beneath it an emergency isolation cut off valve that actuates if there is damage by a vehicle or fire, or excessive flow of fuel. This means only the fuel in the pipes and hose of the dispenser would be released, and that is a relatively small amount.

65 There is a sump under each fuel dispenser that would catch any spill. But in the event of any impact the small volume that might escape the sump could easily be collected by the under canopy drainage system and filtered out by the coalescing plate separator.

66 The petrol, LPG gas, water and air dispensers are all under the canopy so that any likely spills would occur in the area that has the specialised pollution protection equipment.

67 The bulk tankers will pull up beside, but not under the canopy. The Court was told they approach by a left turn into the site, and leave by a left turn out, in order to minimise potential for traffic accident. The modern bulk tankers have valve manifolds that cannot be opened unless the tanker is properly connected to the bulk fuel tank connections. This is done via a spill safety box refill connection point under a waterproof hatch in the concrete driveway apron. The spill safety box provides an internal drain that collects any spill and allows it to be returned to the product line.

68 The pipelines from the refill point to the bulk tanks are in single pipe lengths to avoid any joints or seams. The connecting pipes to each dispenser are also in single length pipes. This minimises potential for pipe leaks.

69 The two tank storage tanks are proposed to be of the most modern kind. They have double walls and are made of fibreglass that does not rust or corrode. The space between the two walls of each tank has a brine solution that enables electronic monitoring of the inner and outer tank walls to detect even miniscule cracks. Audio and visual alarms are to be installed to alert service station staff should there be a crack in either tank. The tanks are tested to the required Australian Standard and are guaranteed for 30 years. Mr Sgro said this installation allowed early intervention to prevent the escape of any pollution. The double walled tanks would not fail in both walls simultaneously, contrary to older technology single skin steel tanks that could rust and corrode undetected.

70 The two tanks proposed are to be anchored to the ground with fibreglass straps attached to concrete blocks. The tanks are bedded and packed in gravel in an excavation 4.2 m deep by 15.6 m long and 8.4 m wide. The tanks are aligned so as not to block the natural ground water flow and the gravel bed will facilitate ground water movement.

71 The test pits and test bores on the site in exhibit S showed, according to the evidence, there were no acid sulphate soils present and ground water was encountered at different depths in different places on the site. Although ground water depth may vary with rainfall, test pit TP5 dug on the site of the tanks showed no ground water at 2.4 m depth, as did TP6 and 7 dug under the location of the building.

72 The sewerage pumpout storage tank was to be contained by a detention dam formed by an earthen wall. This would ensure in the unlikely event of a surcharge it could be prevented from causing pollution until the effluent could be pumped out to a collection truck and the system repaired. The whole installation proposed was in compliance with State Environmental Planning Policy 33 regarding potentially offensive or hazardous development and appropriate measures to minimise any impact would be in place.

73 Overall, the Court was satisfied that the service station would be constructed to standards that would give acceptable protection to the environment from pollution with failsafe technology that would enable the arrest of any unexpected contamination before it could do damage.

74 There was no scientific uncertainty sufficient to cause the Court to consider the application of the precautionary principle.

75 In regard to fire hazard, the technology built into the equipment would achieve the current best practice standards to contain and extinguish any fire or explosion potential. The written advice of the New South Wales Rural Fire Brigade was that the proposal was satisfactory in terms of its ability to be defended against bushfires. Although the local residents had experienced several bushfires in the locality and doubted this evidence, the Court found no reason to question the evidence of the New South Wales Rural Fire Brigade that had the relevance experience, training and responsibility to make such an assessment.

76 Mr Travers is a qualified expert in the field of bush management including fire control and his evidence supported the New South Wales Rural Fire Service’s conclusion, including the position that the proposed bushland regeneration areas on the site would not present any bushfire hazard that might require the removal of the bushland regeneration areas in the future.

77 Unlike the objectors, Mr Travers also saw no problem in obtaining endemic seed stock for the regeneration programme. He believed the National Parks and Wildlife Service would consent to seed collection from the nearby swamp forest but, if not, other sources were available.

78 In regard to traffic controls and pedestrian safety, the Court was satisfied that the traffic control concrete median to Empire Bay Drive, to control entry to the site from eastbound vehicles, and the appropriate slip lanes in Wards Hill Road at Poole Close and Empire Bay Drive, combined with left in, left out site access off Empire Bay Drive would cater for the additional local traffic created by the proposal.

79 Due to the closure of Poole Close at its west end, the additional traffic should only venture about a 100 m into Poole Close to reach the drive entry. This was well short of the Belrose Place corner and should ensure residents at that end receive little additional traffic.

80 The provision of kerb and gutter and a combined pedestrian cycleway path along the entire site frontage to Poole Close with pedestrian refuge bays as previously referred to reassured the Court that the safety facilities for local children and other pedestrians will be enhanced by the proposal. The increased traffic caused by the proposal would not create a hazard to pedestrians sufficient for refusal. Street lighting would also be installed for greater safety at night.

81 In looking at the scenic protection requirements of IDO 122 and DCP 98, one cannot escape the specified permissibility of the proposal with the consent of the responsible authority, and the direct reference to the site in DCP 98 clause 7(f). It says, in effect, the provision of facilities such as the proposal in this location is sought to promote and support tourism of the Bouddi Peninsula. It then makes provision for hobby farm subdivisions in the area and then in clauses 7(f)(vi) to (xi) seeks, amongst other things, to place buildings towards the rear of the site, presumably away from Empire Bay Drive, although this is not specified, to minimise visual impact. It also seeks to have integrated building design and signage.

82 It seems to the Court that IDO 122 and DCP 98 are the overriding instruments and controls for this site, although DCP 159 and DCP 89 must be considered. In DCP 159 the site is in the Empire Bay Area 8, Main Road Corridor. It asks for future buildings to be sited and designed to minimise intrusion on the landscape and to be sited in existing cleared areas, amongst other things. Any service station requires some exposure to the main road and that would have been anticipated by the council at the time of rezoning. Some of the objectors sought for the proposal to be reduced in size. On the site view, the Court had the locations of the northwest corner of the canopy and the northwest corner of the building, marked so that some visual evaluation of the evidence could be considered. As seen from Empire Bay Drive, the building would be most evident approaching from the northeast.

83 The applicant in exhibit T volunteered additional bush regeneration near the Wards Hill Road and Empire Bay Drive intersection. This was only in front of the proposed stormwater detention pond and was only about 8 m wide. With the detention pond, that must remain unbuilt upon, the width is about 22 m parallel to the property boundary. It seemed to the Court that the 30 m setback requirement from Empire Bay Drive was reasonable in that critical location and a width of 30 m bushland regeneration with the detention pond inside it should be required. The building and its ultimate single pylon sign would still be obvious to passersby, but the proposed setting and that of the Wards Hill turnoff to the Bouddi Peninsula would be enhanced in the way sought by the control plan.

84 Approaching from the west, the Court accepted the evidence that the bushland regeneration along Empire Bay Drive would screen the proposal until quite near, although the single pole sign would be obvious from the western direction also. On reaching a position opposite the site, the building would be seen across new turf areas on site and through existing trees and vegetation in the road reserve that were now proposed to be preserved in exhibit T. This too would achieve the setting sought by DCP 159.

85 The provision of DCP 89, scenic quality, in which the site was located in the Bouddi geographic unit was a broader based document that was concerned with overall principles. The proposed site was not specifically identified in it, and the proposal was not anathema to the general principles. The document did express concern that commercial uses in the rural residential areas was breaking down the character of the Cockle, Broadwater landscape unit, but given the other specific council instruments and controls related to this site and the proposal as now presented, DCP 89 was reasonably complied with.

86 Given that the canopy areas and the buildings proposed are offset at an angle to Empire Bay Drive with the nearest part of the canopy 11 m from the site boundary and the nearest point of the building 26 m from the site boundary, the Court has formed the opinion that acceptable visual impact of the proposal could be achieved with the landscape proposals as amended at the end of the hearing, plus further conditions. Those conditions are that the 30 m landscape buffer be added at the northeastern corner of the site as previously referred to, and that the new turf area noted on exhibit T north of the building between it and Empire Bay Drive be retained as a permanent unbuilt-upon landscaped area.

87 Also as previously referred to, the existing swamp mahoganies in the table drain east of the service station driveways and parking area must be retained and also the existing vegetation in the road reserve, except those needed to be removed to construct the left in and left out access from Empire Bay Drive.

88 With the deletion from the proposal of any references to future subdivisions or future development sites elsewhere on the subject land, those questions must be left for council to consider if and when any future development applications are lodged.

89 Having seen the Blackwall Mountain commercial strip mentioned by Mrs Gunther, the Court is satisfied the subject land based on this proposal could never become like that. In terms of operating hours for the proposal, the Court has no particular evidence apart from the fears of some objectors of the potential for the site to become subjected to crime and to create noise and activity nuisance to local residents late at night. The site is relatively isolated from dwellings, the nearest being about a 100 m away and beyond the proposed bush regeneration buffer to Poole Close. Other rural residential houses are further away on their acreage.

90 Whilst the presence of the service station will be there, and it will be seen, and it will be used by vehicles seeking fuel, and by persons seeking convenience goods late at night, the Court finds it difficult to accept any change in amenity to the residents of the locality that would justify control of the operating hours. The expert evidence and the submissions supported this conclusion.

91 Overall the Court has concluded that subject to appropriate conditions being imposed, there was no reason sufficient for refusal of the proposed service station and convenience store.

Orders

92 Therefore the orders of the Court are:

1. The appeal is upheld.
2. Development consent is granted for a service station and convenience store at Lot 10 DP878163 being Nos. 276 to 332 Empire Bay Drive, Empire Bay, as shown on the annotated drawings in exhibit A as modified by annotated drawings in exhibits L, T, U and 23, all as further modified by and in accordance with the conditions in annexure A hereto.

3. The applicant is directed to prepare a set of final drawings in accordance with Order 2 above and submit a copy to the

council and the Court within thirty days of the issue of the written orders and conditions of this judgment. The council is given leave to return the matter to the Court Lists in the event there is any disagreement about the drawings or the interpretation of the conditions. The council shall do so if necessary within a further 30 days after receipt of the final drawings.

4. The exhibits are returned to the parties except exhibits A, E, H, J, K, L, M, N, O, P, Q, S, T, U, V, W and exhibits 8, 16, 17, 23 and 27.