Palm Lake Works Pty Ltd v Ballina Shire Council - [2019] NSWLEC 1479

Land and Environment Court

New South Wales

Medium Neutral Citation: Palm Lake Works Pty Ltd v Ballina Shire Council [2019] NSWLEC 1479
Hearing dates: 15 – 18 July 2019; 22 July 2019; 19-20 August 2019
Date of orders: 04 October 2019
Decision date: 04 October 2019
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development application DA/0018/321 for the staged erection of 75 serviced self-care dwellings, car parking, road construction (including an access way off North Creek Road), earthworks, site filling, stormwater management, infrastructure works, vegetation removal, environmental protection works and other associated works under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at 120 North Creek Road (Lot 11 DP 1245510) is approved subject to the conditions at Annexure A.
(3) The exhibits other than Exhibits 1, 22, A, H, MM are returned.

Catchwords: DEVELOPMENT APPLICATION –expansion of seniors housing development – serviced self-care housing – suitability of the site for the development – certainty of road works in North Creek Road – provision of safe sight distance at new intersection – site compatibility certificate – priority oyster aquaculture area – impact of development on adjoining neighbours – mosquito management – impacts on ecology – public interest – appeal upheld
Legislation Cited: Biodiversity Conservation Act 2016
Biodiversity Conservation Regulation 2017
Environmental Planning and Assessment Act 1979
Fisheries Management Regulation 2010
Land and Environment Court Act 1979
Retirement Villages Act 1999
Roads Act 1993
Rural Fires Act 1997
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Coastal Management) 2018
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
State Environmental Planning Policy No 55 – Remediation of Land
State Environmental Planning Policy No 62 – Sustainable Aquaculture
Cases Cited: Argyropolous v Canterbury Municipal Council (1988) 66 LGERA 203
Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31
Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
CEAL Limited v Minister for Planning (2007) 159 LGERA 232; [2007] NSWLEC 302
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Dickinson Property Group Pty Ltd v Wollondilly Shire Council [2019] NSWLEC 1220
Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160
Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242
Hoxton Park Residents Action Group Inc. v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349
Jonah Pty Ltd v Pittwater Council (2006) 144 LEGERA 408; [2006] NSWLEC 99
Kindimindi Investments Pty Ltd v Lane Cove Council (2006)143 LGERA 277
Oshlack v Rous Water (No 2) (2012) 189 LGERA 243; [2012] NSWLEC 111
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Young v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191
Texts Cited: Australian Standard AS2890.1 2004
Austroads Guide to Road Design
Ballina Development Control Plan 2012
Ballina Flood Risk Management Strategy
Ballina Shire Council Stormwater Management Standards for Development
Dispersal of the Mosquito Aedes vigilax from Urban Estuarine Wetlands in Sydney, Australia, Journal of Medical Entomology in 2019
Healthy Estuaries for Healthy Oysters, NSW DPI 2017
NSW Noise Policy
NSW Oyster Industry Strategy
Planning for Bush Fire Protection, Department of Planning, 2006
Category: Principal judgment
Parties: Palm Lake Works Pty Ltd (Applicant)
Ballina Shire Council (Respondent)
Representation:
Counsel:
I Hemmings SC (Applicant)
J Reid (Respondent)
Solicitors:
Mills Oakley (Applicant)
Parker & Kissane Solicitors (Respondent)

File Number(s): 2018/00326045
Publication restriction: No

Judgment

COMMISSIONER: The Applicant lodged the relevant development application with Ballina Shire Council on 4 June 2018. The Applicant is appealing the deemed refusal of the application in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
In preparation for the hearing and in response to the expert joint conferencing, the Applicant sought leave of the Court to amend the development application. The application has been amended a total of five times since the filing of Class 1 application with the Court. The material changes to the application include:

a reduction in the number of dwellings from 154 to 75;

the provision of vehicular access to the development via an access way from North Creek Road;

the removal of the proposed wellness centre; and

the relocation of the vehicular access bridge to connect the proposed development to the existing Palm Lake Resort (seniors housing) in response to bushfire evidence.

The amended application seeks development consent for the erection of an extension of an existing Seniors Housing Development under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD). The amended application seeks approval for:

75 serviced self-care dwellings

road construction

earthworks, site filling

stormwater management

infrastructure works

vegetation removal and

environmental protection works.

The development is proposed to be staged. All earthworks and civil works will be completed as part of Stage 1 (Exhibit K).
The amended development application involves substantial earthworks including the importation of approximately 207,278 cubic metres of fill (Exhibit 14).
The Respondent maintains that the proposed development should be refused on the following grounds:

the site of the proposed development is unsuitable for the intensity of development sought by the application;

if classified as a driveway, the proposed access way to North Creek Road is development that is outside the bounds of the site compatibility certificate (SCC) and is not permissible;

the proposed intersection with North Creek Road is unsafe due to insufficient sight lines;

there is insufficient information to assess the impacts of the proposed road and intersection works on North Creek Road which are essential to the development;

emergency access for fire appliances in the event of a bushfire will be impeded by unlawful parking on Forrest Oak Boulevarde (referred to in the evidence as the BUPA Access Road);

there is uncertainty as to the extent of fill volume required for the development and whether surcharge loading is required;

the lawfulness of the proposed stormwater discharge from the site is uncertain;

the development has not demonstrated that there will be no net deterioration of estuarine water quality and the remediation of existing problems to achieve estuarine water quality improvements;

the Court could not reasonably be satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland.

the application does not adequately address safety of future residents in event of a flood event;

the application has not adequately considered or made any assessment of the construction phase of the development;

that the proposed removal of the two copses of retained vegetation and the offsets offered by the application are unsatisfactory;

that the indirect impacts of a change to the groundwater and post development flows to the Western Creek will impact downstream ecology;

that the Applicant has not correctly assessed the extent of the saltmarsh community on the subject site; and

that the proposed vegetation management plan (VMP) is in adequate.

The Site

The site comprises one allotment described as Lot 11 DP 1245510 (formerly known as Lot 2 DP 1155600 and Lot 5 DP 565132), No. 120 North Creek Road, Ballina (area of 42.54ha) (Exhibit 1).
The site is located on the corner of Corks Lane and North Creek Road. The site adjoins vacant rural land and the Ballina Airport to the west and north, residential properties to the south and rural residential properties to the east. The site is proximate to North Creek (to the south and east).
The subject site is located to the east of an existing seniors housing development – Palm Lakes Resort. This existing development contains some 286 dwellings. Existing infrastructure services (electricity, telecommunications, water and sewer) are proposed to be extended to the development from the existing Seniors Housing Development (Exhibit 1).
The subject site is predominantly flat and low lying, ranging in natural ground level from approximately RL1.35m - 1.70m AHD.
The northern and eastern areas of the subject site contain tracts of vegetation, some of which form part of a coastal wetland under the provisions of State Environmental Planning Policy (Coastal Management) 2018. The western boundary of the site is bound by a creek that contains riparian vegetation.
Access to the Development is proposed to be achieved via two new access points, with the primary access to the Development proposed from North Creek Road, located between Lot 2 DP 551222, No. 174 North Creek Road and Lot 1 DP 555386, No. 186 North Creek Road, Ballina. The second access is to be through to the existing Seniors Housing Development via a new bridge over an existing creek.

Public Submissions

The Development Application was placed on public exhibition from 11 July 2018 to 10 August 2018. Residents of the existing Seniors Housing Development adjacent the subject site and surrounding property owners and occupants were notified of the application by letter. Two signs were placed on the property (North Creek Road and Corks Lane) and the application was notified in the Ballina Advocate.
The Council received a total of 15 submissions in relation to the application. The issues raised in these submissions are summarised in the Council’s Statement of Facts and Contentions (Exhibit 2) as follows:

Potential for flooding and drainage impacts on adjoining properties (and resulting odour, mosquito breeding issues) and the surrounding area.

The proposal does not take into account climate change and frequency and severity of extreme weather events. The proposal only has a 100mm freeboard over the minimum fill level for the site.

Inadequate information provided in relation to proposed development and the impacts on surrounding properties (during and post construction) – filling of the “expansion” site, impacts on ground water, drainage and flooding.

Overloading of communal facilities in the existing Seniors Housing Development from the proposed 156 dwellings.

Insufficient car parking within existing Seniors Housing Development (around communal facilities) to cater for proposed additional 156 dwellings.

Internal traffic and pedestrian impacts for the existing Seniors Housing Development from additional vehicles (pedestrians and vehicles share road space).

New access should be provided off North Creek Road as the existing intersection and private access road cannot cope with construction traffic and additional resident/employee traffic.

Impacts of construction traffic, earthworks and construction works on residents of the existing Seniors Housing Development, the surrounding environment (vegetation and tidal waterways) and surrounding locality.

Use of sand-based fill will result in construction and maintenance issues for road and pedestrian pathways (civil works defects - cracking of pavements).

Concerns regarding emergency vehicles access for the existing Seniors Housing Development, proposed development, BUPA aged care facility and surrounding locality.

The proposal does not comply with s 6 of the Retirement Villages Act 1999.

Existing vegetation along Western Creekcreek line should be retained and there is no greenspace in the proposed development.

The land should be preserved as wetlands.

Inadequate information provided in relation to flora and fauna impacts resulting from the proposal.

The use of offset credits on other land or making a financial offset in relation to the removal of the 2.53ha of Endangered Ecological Community (EEC) Swamp Oak Flood Plain Forest does not negate the degradation of the local environment.

Inadequate consideration of the provisions of State Environmental Planning Policy No 62 – Sustainable Aquaculture (SEPP 62), including the publication Healthy Estuaries for Healthy Oysters, NSW DPI 2017.

Non-compliance with Ballina Shire Stormwater Management Guidelines.

Impacts of stormwater from the proposed development on existing oyster growing areas.

Cumulative stormwater impacts of surrounding developments on existing oyster growing areas and other marine species.

Questions raised over the veracity of the submitted Stormwater Report and Plan – detaining flows, design parameters of bio-retention basins (incorrect pH), incorrect statements made regarding lawful point of discharge, flow direction and drainage.

Increased siltation and foetid water pooling to the east along North Creek Road has resulted from the existing Seniors Housing Development.

Impacts on quality of estuarine environment and oyster growing areas.

Proximity to the Ballina Airport and noise impacts.

Questions raised in relation to Developer’s compliance with DA 2004/328 – insufficient street and villa numbering, non-compliance with Building Standards and conditions of consent relating to roof colour, mosquito screening and crime prevention.

The amended application was renotified and a total of 24 submissions were received by the Council. In addition to the retention of the previous concerns, the following additional issues were raised within the submissions:

The new location of the proposed bridge, linking the development to the existing Seniors Housing Development, will create amenity impacts (noise, headlights, air pollution) for properties in proximity to the intersection (Poinsettia Street and Lavender Boulevard). This detrimental impact is unreasonable.

The deletion of the Wellness Centre will unreasonably increase pressure on existing facilities within the current village.

That the duration of construction is unknown, but given the extent of fill will require significant road transport. Any approval should ensure that the existing village road network is not utilised for construction access.

At the commencement of the proceedings, the Court heard from a number of residents and adjoining owners in regards to their concerns with the proposed development. The opportunity was also provided to the Court to view a number of adjoining and proximate properties. The oral submissions of the residents reiterated many of the proceeding issues. In addition, they emphasised:

the potential impact of the development on local birdlife and wildlife abundance in general;

the capacity of the facilities and infrastructure of the existing Seniors Housing Development to service the additional population;

the current location of the proposed internal bridge linking the existing Seniors Housing Development to the new development was not known to residents when they moved into the existing village. It will impact on their amenity, the views from their villas and the ambience of their street;

the amenity impacts arising from the development for residents adjoining the access way and the proposed bridge link, as well as the impact of the development on the rural character and lifestyle of properties on North Creek Road;

the implementation of the acoustic wall to the access way from North Creek Road will: affect the outlook from the adjoining properties; be too close to the adjoining homes; and be out of character with the rural area. Further the construction of the wall, and the movement of delivery vehicles during construction, may impact on the structure of adjoining homes; and

the potential for stormwater egress from the site to flow into adjoining land and waterways impacting flood levels and water quality.

The Planning framework for determining the development application

The application is lodged under the provisions of SEPP HSPD as ‘serviced self-care housing’. That type of development is defined at cl 13(3) of SEPP HSPD as:

seniors housing that consists of self-contained dwellings where the following services are available on the site: meals, cleaning services, personal care, nursing care.

The development application is accompanied by a Site Compatibility Certificate (SCC) issued on 12 October 2017. Consistent with cl 25(5) of SEPP HSPD, the relevant delegates states in the certificate:

“I certify that in my opinion
- the site described in Schedule 1 is suitable for more intensive development; and
- the use of the site for dwellings designed for seniors and people with a disability is unlikely to have an adverse impact on the surrounding environment or land uses having regard to the criteria set out in clause 25(5)(b); and
- development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding land uses only if it satisfies certain requirements specified in Schedule 2 of this certificate.”
(Exhibit 2, Folder 1)

The items listed at Schedule 2 of the certificate are as follows:

“Requirements imposed on determination:
1. The final layout, building construction and onsite facilities in the proposed seniors housing development will be subject to the resolution of issues relating to:
- aircraft noise;
- drainage, flooding and site filling;
- traffic;
- bushfire protection;
- acid sulfate soil management;
- land contamination; and
- flora, fauna and tree removal (including impact on SEPP 14 wetlands and potential compensation for the loss of the former rehabilitation area associated with DA/2004/328)”

(Exhibit 2, Folder 1)

Notwithstanding the issue of the SCC, cl 24(3)(a)(ii) of SEPP HSPD states that the consent authority may refuse to grant consent to a development application following its own assessment of the compatibility of the proposed development with the surrounding environment.
Figure 1 to the SCC identifies the area of the Land which is certified as being suitable for more intensive development. Relevantly, all parts of the proposed development now fall within the area certified by the SCC, with the exception of the southernmost part of the access road to North Creek Road. The SCC expires on 12 October 2019.
I accept the agreed evidence of the planning experts that the proposed development satisfies cl 26 of SEPP HSPD: Access to services and facilities. The planning experts state their agreement as follows:

“It is agreed that the application provides sufficient detail to satisfy Clause 26(2). The development will rely on a private bus service to access services outlined in (1)(a)(b)and (c) [of cl.26 of SEPP HSPD]. The Plan of Management sets out the manner in which the bus services will operate. The bus service will meet the requirements of bus (10 passengers plus driver) set out in Clause 43 of the SEPP. The experts note that an amendment to the final version is required to refer to weekend bus services as per the requirement of Clause 26. This amendment has been made and an amended POM annexed.”
(Exhibit 3)

Pursuant to cl 27(1) of SEPP HSPD, the consent authority must not consent to a development application on bush fire prone land map unless it is satisfied that the development complies with the requirements of Planning for Bush Fire Protection, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning, dated December 2006. Further, cl 27(2) lists matter that the consent authority must give consideration in determining an application.

SEPP HSPD at cl 28(1) states:

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

It is stated by the Respondent that this will be achieved by the extension of the existing services from the existing Seniors Housing Development (Exhibit 1).

In part, the proposed deferred commencement condition requires at (i) the details of ‘water and sewer mains required the service the development via DA/2018/321 to be located in North Creek Road and their position outside the pavement in North Creek Road’.
I am satisfied on the evidence (Exhibit U) that cl 28(1) of SEPP HSPD is met. Similarly, on this basis I am satisfied that the precondition at cl 7.7 of Ballina Local Environmental Plan 2012 (LEP 2012) is met.
I accept the agreed evidence of the planning experts that pursuant to cl 30 of SEPP HSPD the site analysis is satisfactory and that has been taking into account in the development application. Further, I note that the planning experts agree that the written statement provided by the Applicant addresses how the design principles in Div 2 of SEPP HSPD have been addressed (cl 32 of SEPP HSPD).
Clause 40 of SEPP HSPD provides development standards including minimum sizes, and building heights. The planning experts have considered these standards as part of their joint report (Exhibit 3). I accept the evidence of the planning experts and find that the proposed development satisfied the development standards detailed in cl 40 of SEPP HSPD.
Further, I am satisfied that the future residents will have reasonable access to: home delivered meals; personal care and home nursing; and assistance with housework as required by cl 42 of SEPP HSPD. In reaching this satisfaction, I accept the agreed evidence of the planning experts as follows:

“…as detailed in the POM, the proposal will rely on a combination of meals being provided in the communal dining facility that is located within the existing retirement village in addition to third party provision (by an approved provider for Aged Care Services in accordance with the Aged Care Act, 1997). A letter has been provided by the third party provider to confirm they have capacity to serve the needs of the development at all times that the communal dining facility is not available. In addition, this provider will provide personal care, home nursing and property maintenance.”
(Exhibit 3)

Clause 43 of SEPP HSPD is in the following terms

43 Transport services to local centres
(1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development:
(a) that will drop off and pick up passengers at a local centre that provides residents with access to the following:
(i) shops, bank service providers and other retail and commercial services that residents may reasonably require,
(ii) community services and recreation facilities,
(iii) the practice of a general medical practitioner, and

(b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day.

(2) Subclause (1) does not apply to a development application to carry out development for the purposes of the accommodation of people with dementia.
(3) In this clause, bank service provider has the same meaning as in clause 26.

Clause 43 is met by the Applicant through the provision of a private bus service. The scope of the service is detailed in the Operational Plan of Management (Exhibit C).

“Bus Service:
Two private mini buses will be kept on site, the onsite management staff will run a regular bus service to local shops, bank services, general medical practitioners, and recreational facilities etc. The schedule for the village bus service will be set in conjunction with the residents and managed to avoid conflict with local peak traffic time.
The bus service will be available to transport residents from the village to Ballina Fair and Ballina Central shopping centres at least once between 8am and 12pm Monday to Friday and at least once between 12pm and 6pm Monday to Friday. These centres provide access to shops, banking and postal services, commercial uses and medical practitioners. Each of these regular destination has a sealed footpath with a gradient from the bus drop off/ pick up location to the entry of the destination of less than 1:14, providing a safe means of access by wheelchair or the like.
…
A village bus will also be available for resident outings as organised by the onsite management team.”
(Exhibit C)

The bus provision detailed by the Operational Plan of Management is proposed to be modified by the following agreed condition:

“A private community bus service is required to be made available to the residents of the 75 serviced self care dwellings approved as part of this consent. The bus service is to be available to transport residents from the development to the Ballina Fair Shopping Centre and the Ballina Central Shopping centres at least once per day between 8am and 12pm and once per day between 12pm and 6pm, seven days per week. The private community bus is to have a capacity for seating a minimum of 10 passengers plus driver.”
(Exhibit 22, KK)

On the basis of the above condition, I am satisfied that cl 43 of SEPP HSPD is met.
Clause 44 of SEPP HSPD provides that the services be available in a timely manner upon completion of the housing intended for residents. It is agreed that this is addressed by the provision of facilities and services within the existing Seniors Housing Development adjacent the site. No new communal facilities are proposed by this application.
Clause 50 of SEPP HSPD provides standards that cannot be used to refuse consent got self-contained dwellings. Relevant to the current application are the following standards:

(a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys),
…
(e) solar access: if living rooms and private open spaces for a minimum of 70% of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,
…

The development application comprises integrated development, being a ‘special fire protection purpose’ under s 100B of the Rural Fires Act 1997. Concurrence from the NSW Rural Fire Services has not been provided. Pursuant to the provisions of s 39(6)(a) of the Land and Environment Court Act 1979, the Court may still determine the appeal.
State Environmental Planning Policy Coastal Management (Coastal Management SEPP) was gazetted on 3 April 2018. Under this instrument, the subject site is nominated as a ‘coastal environment area’. However, cl 21(1) of the Coastal Management SEPP provides:

The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies.

The “former planning provisions” are defined in cl 21(4) of the Coastal Management SEPP to mean:

(a) the provisions of each of the following Policies as in force immediately before the Policy’s repeal:
(i) State Environmental Planning Policy No 14—Coastal Wetlands,
(ii) State Environmental Planning Policy No 26—Littoral Rainforests,
(iii) State Environmental Planning Policy No 71—Coastal Protection, and

(b) the provisions of State Environmental Planning Policy (Infrastructure) 2007 that would be in force if that Policy had not been amended by this Policy.

The effect is that the provisions of State Environmental Planning Policy 14 – Coastal Wetlands (SEPP 14) continue to apply to the development applications lodged before the repeal date. No specific provisions of this instrument are in contention between the parties.
SEPP Coastal Management is a matter for consideration under s 4.15(1) of the EPA Act as a draft instrument.
The subject site falls within land identified within SEPP Coastal Management on the Coastal Wetlands and Littoral Rainforests Area Map (CWLRA map). The CWLRA map distinguishes between land mapped as ‘coastal wetland’, ‘proximity area for coastal wetlands’, ‘littoral rainforests and ‘proximity area for littoral rainforests’. The development area encroaches on land mapped as ‘proximity area for coastal wetlands’.
Clause 10 of the Coastal Management SEPP applies to the site. It states:

11 Development on land in proximity to coastal wetlands or littoral rainforest
(1) Development consent must not be granted to development on land identified as ‘proximity area for coastal wetlands’ or ‘proximity area for littoral rainforest’ on the Coastal Wetlands and Littoral Rainforest Map unless the consent authority is satisfied that the proposed development will not significantly impact on:
(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or
(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

The Biodiversity Offsets Scheme applies to local developments assessed under Part 4 of the EPA Act that trigger the Biodiversity Offsets Scheme (BOS) threshold or is likely to have a significant effect on threatened species based on the ‘test of significance’ at s 7.3 of the Biodiversity Conservation Act 2016 (Biodiversity Conservation Act). The Biodiversity Conservation Regulation 2017 sets out the threshold levels for when the BOS is triggered. For the subject site, the BOS is triggered as ‘impacts occur on an area mapped on the Biodiversity Values Map published by the Minister for the Environment’.
The Applicant has prepared a Biodiversity Development Assessment Report (BDAR) and identified that offsets are required in the form of ecosystem credits. This is discussed later in the judgment at [191] and following.
The SEPP 62 was repealed on 27 February 2019. The subject development application was lodged prior to the repeal of the instrument and pursuant to the relevant saving provisions, it is agreed between the parties that SEPP 62 still applies to the current development application. The aims of SEPP 62 are detailed in cl 3 of the instrument as follows:

(a) to encourage sustainable aquaculture, including sustainable oyster aquaculture, in the State, namely, aquaculture development which uses, conserves and enhances the community’s resources so that the total quality of life now and in the future can be preserves and enhanced, and
(b) to make aquaculture development permissible in certain zones under the Standard Instrument, as identified in the NSW Land Based Sustainable Aquaculture Strategy, and
(c) to set out the minimum site location and operational requirements for permissible aquaculture development (the minimum performance criteria), and
(d) to establish a graduated environmental assessment regime for aquaculture development based on the applicable level of environmental risk associated with site and operational factors (including risks related to climate change, in particular rising sea levels), and
(e) to apply the Policy to land-based aquaculture development and oyster aquaculture development in the State and to include facility for extension of the Policy to natural water-based aquaculture.

Part 3A of SEPP 62 details the requirements for a consent authority to consider effects of a proposed development on oyster aquaculture. In accordance with cl 15B of SEPP 62 the application was referred to the NSW Department of Primary Industries (NSW Fisheries). The response from NSW Fisheries, which must be considered in determining the application (s15B(2)) concludes that:

“DPI Fisheries has prepared this letter of advice because the subject proposal risks degrading of water quality within North Creek and the Richmond River estuary generally. The risk is especially relevant to the nearby Priority Oyster Aquaculture Areas. Such an outcome is inconsistent with the intended outcome of SEPP62 which is to achieve no net deterioration of estuarine water quality and remediation of existing problems. Improving stormwater quality management by incorporating addition components of water sensitive urban design and achieving habitat buffers to Key Fish Habitat that comply with DPI Fisheries policy are two ways that the risk of water quality impacts on North Creek can be reduced.”
(Exhibit 1)

Clause 15C of SEPP 62 states:

A consent authority may refuse to grant consent to development:
(a) if it is satisfied that the development will have an adverse effect on, or impede or be incompatible with:
(i) any oyster aquaculture development that is being carried out (whether or not within a priority oyster aquaculture area), or
(ii) any oyster aquaculture development that may in the future be carried out within a priority oyster aquaculture area, or

(b) if it is not satisfied that appropriate measures will be taken to avoid or minimise any such adverse effect, impediment or incompatibility.

Pursuant to cl 15D, the NSW Oyster Industry Strategy must be taken into account by the consent authority. Under cl 5.1 of this strategy, the oyster growing areas in North Creek (in the vicinity of North Creek Road) are designated ‘Oyster Priority Areas’.
State Environmental Planning Policy No 55 - Remediation of Land at cl 7(1) requires the consent authority to consider, before the grant of consent if the site is contaminated. The Applicant has prepared a Preliminary Site Contamination Investigation over the subject site (Exhibit D). The report concludes that the site is suitable for the proposed low density residential development. I am satisfied that the requirements of cl 7(1) are met.
In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, relevant BASIX certificates have been lodged for the development (Exhibit DD).
The land is zoned RU2: Rural landscape under the LEP 2012. Pursuant to cl 2.3(2) of LEP 2012, the consent authority is to have regard to the objectives of the zone. They are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
• To maintain the rural landscape character of the land.
• To provide for a range of compatible land uses, including extensive agriculture.
• To minimise the fragmentation and alienation of resource lands.
• To minimise conflict between land uses within the zone and land uses within adjoining zones.
• To enable small-scale tourist-orientated development that is compatible with the rural nature of the land.
• To encourage development that involves restoration or enhancement (or both) of the natural environment if consistent with the production and landscape character of the land.
• To enable development that does not adversely impact on the natural environment, including habitat and waterways.
• To ensure that there is not unreasonable or uneconomic demands (or both) for the provision of public infrastructure.

The relevant development standard for height (cl4.3) is 8.5m, however given the operation of cl 4.3A this dimension is taken from the minimum height on the Building Height Allowance Map to account for the need to respond to the flood constraint of the land. For the subject site, this height is 1.9m AHD. The experts agree that the amended plans are compliant with the height standard.
The Respondent argues that cl 5.10(8): Aboriginal places of heritage significance in LEP 2012 is relevant to the determination of the development application as the works proposed in North Creek Road, whilst not part of the development for which consent is sought, are a fundamental component of the proposal. Works in North Creek Road are proximate to a mapped item of Aboriginal Heritage significance. The Applicant has prepared an Aboriginal Heritage Assessment (Exhibit P).
Clause 7.9(3) of LEP 2012 states that development consent must not be granted for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. The planning experts agree that the Acid Sulfate Soils Management Plan in Exhibit C satisfies this requirement, subject to the imposition of agreed conditions. I accept their agreement.
Clause 7.2(4) Earthworks states that prior to the grant of consent for earthworks, the following matters must be considered:

(a)  the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b)  the effect of the development on the likely future use or redevelopment of the land,
(c)  the quality of the fill or the soil to be excavated, or both,
(d)  the effect of the development on the existing and likely amenity of adjoining properties,
(e)  the source of any fill material and the destination of any excavated material,
(f)  the likelihood of disturbing relics,
(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

The matters in cl 7.2(4) of LEP 2012 are addressed later in the judgment.
The site is mapped on the Strategic Growth Areas Map under LEP 2012 as a ‘strategic growth area’. Clause 8 of LEP 2012 applies to land identified in the map. The objective of cl. 8 is ‘to ensure that strategic urban development opportunities in the Strategic Urban Growth Area are maintained’.
Clause 7.8(3) states:

(3) Development consent must not be granted to development on land identified in subclause (2) (a)unless the consent authority has considered whether the development may preclude future urban or employment land uses on the land having regard to:
(a) the orderly and coordinated provision of infrastructure, and
(b) the maintenance of amenity and scenic values, and
(c) land use conflict impacts associated with stormwater or wastewater discharge and emissions,
including noise, dust and odour, and
(d) site access, generation of traffic and the efficient functioning of transport infrastructure.

The Ballina Development Control Plan 2012 (DCP 2012) applies to the development.
At section 3.6 in Chapter 2: General and Environmental Controls, DCP 2012 provides the following:

“3.6.2 Planning Objectives
a. Minimise nuisance and health risk associated with mosquitoes; and
b. Minimise human contact with mosquitoes.
3.6.3 Development Controls
….
iv. Development on land identified as “Coastal Plains and Lowlands” on the Mosquito Management Map that comprises:
• subdivision involving the creation of more than 10 lots, • seniors housing or tourist and visitor accommodation on land not presently zoned for urban development, or
• any development that includes stormwater control ponds or water features designed or capable of holding water for a period in excess of 48 hours; requires the provision of either:
• a minimum 100m wide buffer in a form suitable for the management of mosquito risk between the source of mosquito hazard / breeding sites and proposed urban land uses, or
• an entomological report prepared by a suitably qualified and experienced professional that addresses the risk to humans associated with mosquitoes and associated management measures.

…
vi. An entomological report required under (iv) or (v) is to include:
• Documentation of the qualifications and experience of the person(s) undertaking the assessment;

• Details of the methodologies used;
• Evidence that fieldwork has been undertaken between November and April; and
• Information concerning the measures to minimise the potential impact on future residents or site users from mosquitoes originating external to the development site.”

Experts

Consistent with the matters in dispute in the proceedings, the parties engaged the following experts:

Area of Expertise

Applicant

Respondent

Town Planning

Mr JMead

Ms A McCabe

Entomology (Mosquito)

Mr Dl McGinn

Dr C Ewart

Bushfire

Mr G Swain

Mr P Thorton

Hydrology

Dr D Martens

Dr T Johnson

Geotechnical

Dr D Martens

Dr P Shaw

Ecology

Dr D Robertson

Mr M Howland, Dr McDonald

Flood Engineering

Dr D Martens

Mr N Collins

Traffic Engineering

Mr D Kleinmeyer

Mr S Healey

The experts produced joint expert reports that were tendered in the proceedings. I have read and considered these expert reports.

Permissibility of works outside the bounds of the Site Compatibility Certificate

The proposed development has been amended to remove reference to works outside the bounds of the SCC with the exception of:

works required on lands the subject of DA 2004/328 (as amended); and

the access way from North Creek Road.

The works to be undertaken with the bounds of the existing site of Existing Seniors Housing Development are identified on drawing PS03-A050 prepared by Martens and Associates. The works include footpath extensions, retaining works, and the provision of emergency vehicle access through to Corks Lane. This plan is included in the documentation listed in Condition 2 of the proposed conditions of consent (Exhibit KK, 22). The modification of the existing consent is also required by condition.

Access way from North Creek Road

The proposed development is on land zoned RU2 Rural Landscape Zone. The development of the subject site for the purposes of serviced self-care housing (seniors housing) is permissible because of the issue of the SCC and the provisions of SEPP HSPD.
The proposed access way from North Creek Road is not within the bounds of the SCC. The Respondent argues that when the access way is properly characterised as “a use for the purpose of the proposed seniors housing development”,If this submission is accepted the Respondent argues that the Court does not have the jurisdiction to approve the use of the road as: it is outside the certified by the SCC; and is otherwise a prohibited use on the land (Respondent’s written submissions, 20 August 2019, p 9).
Ms Reid, counsel for the Respondent, argues that when characterising whether the access way to North Creek Road is part of the seniors housing development or a ‘road’ the decision of Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (‘Chamwell’) confirms the correct approach to the characterisation of use (at [27]-[28]):

“Proper characterisation
27 In planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534.
28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the “physical acts by which the land is made to serve some purpose”: at 508.”

In conclusion, Ms Reid argues:

“In the case of the use of the Land for seniors housing, the access way will be designed to look like a driveway pursuant to Australian Standard AS2890.1.2004, it will only be accessed by residents through a gate and a security pass. The construction of the dwellings rely on a paved ‘road’ network for the purposes of the seniors housing community. The access will provide access to the public road and the ancillary facilities within the proposed development. The proposed development could not function on the land without the access way. Viewed this way, the proposed access way is intended to be used and will be used for the purpose of seniors housing.”
(Respondent’s written submissions, 20 August 2019, p 10).

On the preceding basis, Ms Reid argues that the access way is integral to the development and as characterised for the purpose of seniors housing is prohibited. She argues the Court has no power to approve the development.
In the alternative, the Applicant argues that within the RU2 Rural Landscape Zone, ‘roads’ are a nominate permissible use, and therefore the access way from North Creek Road to the development within the bounds of the SCC is permissible in the zone.
Mr Hemmings SC, counsel for the Applicant, relies on the decision of Cripps CJ in Argyropolous v Canterbury Municipal Council (1988) 66 LGERA 203 (‘Argyropolous’). He notes that in Argyropolous, the land at the head of the battle axe block was zoned to permit light industrial use. The access handle, however, was zoned residential, in which the light industrial use was prohibited. Mr Hemmings submits the following extract from Argyropolous at [207] is relevant to the current proceedings:

“In my opinion, a ‘road’ use is contemplated by the scheme as a separate use. The function of a road is to permit the passing and repassing of vehicles. The use of the handle for a ‘road’ which is a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because the start and/or destination of vehicles passing over the road is light industrial land.”

In contrast to the submissions of Ms Reid, Mr Hemmings argues that the decision in Chamwell is not directly relevant to the current proceedings as ‘it has very different facts’ (Applicant’s written submissions, 20 August 2019, p 7).

Findings

A development application can only be made to carry out development for which consent is required by an environmental planning instrument. A development application cannot be made for development that is prohibited. In this case, LEP 2012 is the relevant environmental planning instrument.
The task of correctly categorising the purpose, or purposes, of a particular use or development application is a threshold question in determining whether a particular development application is capable of lawful determination. If the Court accepts the submission of the Respondent, that the proposed use of the access way is prohibited, the current development application is an ineffective application and the Court would have no power to approve the development sought (s 4.13 of the EPA Act).
In addition to the cases referenced by the Counsel for the parties, two other decisions are of relevance: Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 (‘Friends of Pryor Park’) and Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 (‘Pet Carriers’).

The approach outlined in Friends of Pryor Park is that once a determination of permissibility is made by categorising a purpose, the fact that it may also fall within another purpose is legally irrelevant. The relevant passage of the decision is extracted below (at page 5):

“The respondent’s competing argument is that, where as in the present case, the proposed development falls within the permissible purpose of community facilities, development consent may be legally granted to the proposed development of that purpose and the fact that the development also falls within another purpose, namely childcare centre, is legally irrelevant to the validity of the development consent granted for the permissible purpose.
…
In my judgement the Respondent’s argument is correct and is clearly to be preferred to the Applicant’s competing argument.”

the decision of Preston CJ in Pet Carriers at [32] states:

“In this situation, the question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category. The latter task may be required when determining whether a development is an existing use under the EPA Act: see C B Investments Pty Ltd v Colo Shire Council at 280. But it is not the task to be undertaken when determining whether development is for a purpose that may be carried out with consent.”

The definition of ‘road’ in LEP 2012 is: ‘road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road’.
The access way is not proposed to be dedicated to Council as a public road. The Dictionary to the Roads Act 1993 defines a ‘private road’ as any road that is not a public road. The Respondent, in their written submissions accepts that ‘given the broad definition of ‘road’ adopted by the LEP, any type of access way on private land could be categorised as a private road’ (Respondent’s written submissions, 20 August 2019, p 8).
It is agreed between the parties that a ‘road’ is a permissible use in the RU2 Rural Landscape Zone.
On the basis of the case law, and in particular the correlation of the facts in Argyropolous with the current proceedings, I accept the submissions of Mr Hemmings, and his reasoning at [70] – [72], that the access way is appropriately characterised as a road and is permissible.

Are the likely impacts of the development acceptable?

Mosquito Management

The Applicant has prepared and filed a Revised Mosquito Impact Assessment (Exhibit W) and Mr McGinn and Dr Webb have prepared a joint expert report addressing the relevant contentions in the appeal (Exhibit 4).
Relevantly, Mr McGinn and Dr Webb reach agreement on the following in their joint report:

that there currently exists environmental conditions providing breeding and refuge habitat for the important pest mosquito species Verrallina funerea (‘VF mosquito’) within portions of the development site and within the adjacent coastal wetland protection zone.

“by any estimation, under existing site conditions, that the seasonal abundance of Verrallina funerea would be excessive and cause nuisance biting and pose a public health risk of arbovirus transmission, for the reasonable enjoyment of the development site for residential purposes” (Exhibit 4).

that the design of the development to include open space buffers for the purpose of asset protection zones (APZ) for bushfire and the provision of a mosquito buffer will reduce the dispersal of the VF mosquito into the proposed residential allotments.

that the open space APZ and mosquito buffer will not be effective in managing the mosquito species Aedes vigilax (Saltmarsh mosquito).

that the Saltmarsh mosquito

“is a seasonal nuisance biting and public health pest over most of the coastal regions of Australia where tidal saltmarsh exists, and it affects communities over the wider Ballina region in general including this development.”

that the Revised Mosquito Impact Assessment (Exhibit W) contains sufficient information available to make an assessment of the potential impacts from mosquitoes.

that if the Concept Stormwater Management Plan is approved and implemented as detailed then ‘the risk of mosquito related impacts is adequately managed’.

(Exhibit 4)

Further, the experts agree that there is presently an abundance of mosquitos on the land, but disagree as to whether the proposed development will adequately manage mosquito risk, in particular in relation to the VF mosquito.
I note that the Revised Mosquito Impact Assessment has been peer reviewed by Professor Richard Russell and that both experts accept Professor Russell as highly experienced and reputable expert.
Professor Russell notes in his peer review of the Revised Mosquito Impact Assessment that:

“This study has provided some useful insights re the dispersal of major and minor pest species on the North Coast of New South Wales. I appreciate the objectives an limitations of mounting such a study with respect to the various species involved, but for Ve Funerea in particular, I would like to have seen traps set at 0-25m distance as, in my experience, this mosquito usually does not travel far beyond the fringe of heavy vegetation, and collections at 10m and 15m may have indicated a relatively small buffer zone may be appropriate for protection (at least at that study site).”
(Exhibit 4)

Whilst Mr Webb agrees that the proposed 25m buffer will assist in minimising human contact with VF mosquitos and any subsequent nuisance or impact to health, he argues that: ‘it will not reliably prevent all contact between people and mosquitos’ (Exhibit 4).
As detailed at [60], DCP 2012 at 3.6.3 (iv) requires either a 100m buffer or ‘an entomological report prepared by a suitably qualified and experienced professional that addresses the risks to humans associated with mosquitoes and associated management measures.’ Relevantly, the objective of the relevant DCP control is to: (a) minimise nuisance and health risk associated with mosquitos; and (b) to minimise human contact with mosquitos.
Mr Hemmings submits that on the basis of the preceding agreement of the experts the development controls in DCP 2012 are met. However, he argues that Dr Webb seeks to apply a higher, or more demanding, standard. Mr Hemmings, relying on s 4.15(3)(a) of the EPA Act, argues that this is an incorrect approach:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development

Mr Hemmings submits that Dr Webb applies a test of ‘seeking to substantially minimise nuisance and health risks associated with mosquitos’ (Applicant’s written submissions, 20 August 2019, p 25).
Mr Hemmings argues that the Court would accept the evidence of Mr McGinn that ‘dispersal across terrain free of substantial vegetation, from an abundantly populated harbourage site, is significantly attenuated at a distance of 25m’ (Applicant’s written submissions, 20 August 2019, p 26).
In relation to the second species, the Saltmarsh mosquito, Mr Hemmings references the paper prepared by Dr Webb and Professor Russell: Dispersal of the Mosquito Aedes vigilax from Urban Estuarine Wetlands in Sydney, Australia published in the Journal of Medical Entomology in 2019. He notes that the study concludes in part that:

“With regard to Ae vigilax dispersing from coastal wetlands, based on the findings of this investigation, the implications are that this mosquito is dispersing so widely that buffer zones between estuarine wetlands and residential or recreational developments will not provide acceptable mitigation of pest and public health risks posed by this mosquito.
…
However, based on the results of our findings, the incorporation of buffer zones between estuarine wetlands and residential areas is not an effective strategy to reduce health risks associated with Ae vigilax populations.”
(Exhibit 4)

Given this evidence, Mr Hemmings argues that the relevant inquiry is to determine whether there has been appropriate management regimes put in place, or able to be put in place, for the proposed development to meet the objective of minimising nuisance and health risk and minimising human contact with mosquitoes. He notes that the experts have reached agreement that the proposed onsite management techniques are appropriate.
In the alternative, Ms Reid argues that the Revised Mosquito Impact Assessment (Exhibit W) places emphasis on the importance of the ongoing management of the Western Creek line and of the stormwater infrastructure to ensure that breeding grounds for mosquitos are not created. She notes that whilst the experts agree that if the proposed Vegetation Management Plan (VMP) is implemented, the risk of mosquito breeding and harbourage in the Western Creek will be effectively managed; importantly, they also agree that the Western Creek line is currently not being managed in accordance with the requirements of the existing consent for the adjoining Seniors Housing Development (and the Creek Vegetation Management Plan (CVMP) under that approval).
Further, during the onsite view, Ms Reid noted that standing water was observable in existing bio-retention filters within the adjoining Seniors Housing Development, despite the last rainfall being experienced some 5 to 7 days before the site visit (by reference to Exhibit 16). She notes that it was Mr McGinn’s oral evidence that if the proposed bio-retention filters performed in this manner, he would ‘definitely have a problem’, presumably as they would create breeding grounds for mosquitos (Respondent’s written submissions 20 August 2019, p 72).
Ms Reid notes that in the decision of Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99, his Honour found at [36]-[37] that the mere unlawfulness of a past use is not a relevant factor. However, she argues that

“past conduct may be taken into account where the impacts of that conduct have been unacceptable and that conduct cannot be addressed appropriately by conditions of consent”
(Respondent’s written submissions 20 August 2019, p. 72).

She concludes that:

“In circumstances where departures from onerous management obligations will expose a vulnerable population to risk of mosquito borne disease and reactions to bites (p4, Exh 4), the Court could not have confidence that a condition to maintain the riparian zone and bio-retention filters can reasonably be complied with.”
(Respondent’s written submissions 20 August 2019, p. 73).

Findings

I accept the submission of Mr Hemmings that the effect of s 4.15(3)(a) of the EPA Act is that if the control at 3.6.3 of DCP 2012 is met, then a more onerous standard cannot be applied by the consent authority. That standard, in this case, is the provision of ‘an entomological report prepared by a suitably qualified and experienced professional that addresses the risks to humans associated with mosquitoes and associated management measures’ (refer to [60]. The Revised Mosquito Impact Assessment is such a report.
It is agreed by the experts that the Revised Mosquito Impact Assessment contains sufficient information available to make an assessment of the potential impacts from mosquitoes (Exhibit 4). Further, the report has been peer reviewed by a professional agreed by the experts as being highly experienced and reputable.
I am satisfied that the Revised Mosquito Impact Assessment provides management measures that are sufficient for the VF mosquitos by the provision of a 25m buffer, the implementation of the VMP and by the management of the accumulation of standing water in the both the stormwater management devices and the civil works to eliminate existing ground pool mosquito breeding sites (Exhibit W).
On the basis of the agreed evidence of the experts, I accept the submission of Mr Hemmings that the objectives of the control at 3.6.3 of DCP 2012 are also met. Namely to: (a) Minimise nuisance and health risks associated with mosquitoes and (b) Minimise human contact with mosquitoes.

I am not persuaded by the submissions of Ms Reid that the obligations to maintain the riparian zone in accordance with the VMP and maintain bio-retention filters cannot reasonably be complied with. The proposed conditions of consent in this matter are extensive in response to the complexity and extent of works proposed. A number of these conditions are ongoing conditions that will require attention of the operator of the proposed development into the future. These conditions include the implementation and monitoring of the VMP implementation, compliance with the Bushfire Safety Authority for the development, the ongoing management of service providers to provide meals, personal care, nursing and housework, provision of a bus for residents etc.
There is no evidence that the intrinsic nature of the maintenance works required to manage and contain the risk of mosquito harbourage and breeding are of a class of condition that is more onerous or impractical than these remaining conditions. However, given the importance of the management of the site to minimise breeding and refuge habitat for mosquitoes, I am satisfied it is appropriate to amend condition 191 as follows (additional words bold):

“191. All stormwater management infrastructure/ elements including but not limited to collecting traps, bio filtration basins and swales, and the Western Creek line, must be maintained to ensure water does not remain beyond 72hours after inflows have ceased and in accordance with the Revised Mosquito Impact Assessment approved as part of this consent.
An annual unscheduled site visit is to be undertaken by a suitably qualified and experienced entomologist. They are to prepare a report on the operation of the ongoing measures and confirm they are functioning to minimise potential impact to residents from mosquitoes. The report is to be provided to the site Operators. The report is to be provided to Council officers on request.”

I am satisfied that the residual risks arising from the management of mosquitos on the subject site are not sufficient to warrant refusal of the application.

Bushfire Risk

Both Ms Reid and Mr Hemmings submit that the bushfire experts are agreed that the proposed development has appropriate APZ, the internal road system is compliant and appropriate (multiple) egress points have been provided.
Importantly, the experts agree that the management of bushfire risk to the proposed development is satisfactory (Exhibit 5).
The area of disagreement between the experts is in relation to the potential for the proposed development to impact on the existing Seniors Housing Development. Specifically:

whether the proposed works will impinge on the ability of the existing Seniors Housing Development to meet its bushfire safety requirements; and

whether the management regime for the Western Creek line proposed by the VMP is satisfactory.

Mr Thorton summarises his concerns in the joint report as follows:

The proposed VMP does not comply with the requirements of the Bushfire Safety Authority (BFSA) relating to the existing structure of development consent no. 2004/328 (the consent for the existing Seniors Housing Development). The following reasons are provided:

The BFSA requires a 50m APZ consisting of a 35m inner protection area (IPA) and a 15m outer protection area (OPA).

By reference to Planning for Bushfire Protection 2006 the APZ is measured from the existing dwelling (Section 3.1a)

The VMP details planting within the 50m APZ.

The APZ is non-compliant due to excessive vegetation.

At 3.1.2 ‘Zone 2: Riparian Vegetation’, the VMP for the proposed development adopts the planting and management regime of the previous CVMP.
Mr Thorton concludes that the vegetation within the Western Creek, when managed as proposed by the VMP (and therefore the CVMP), has the potential to create a bushfire risk to the existing village.
Mr Hemmings submits that the bushfire protection regime adopted by the original consent and implemented through the CVMP provided that the Western Creek is required to be managed on an ongoing basis to ensure that it does not become a fire source. In support of this submission, Mr Hemmings references task 2 in Table 28 of the CVMP which states: ‘Carry out works in a manner that does not create a bushfire hazard’ (Tcpt, 18 July 2019, p 130(35)).
Further, Mr Hemmings argues that the BFSA issued by the NSW Rural Fire Service (RFS) for the adjoining Seniors Housing Development adopted the approach of measuring from the building, not the fire source (Tcpt, 18 July 2019, p 115(10)). In his submission, this is confirmed by reading Conditions 1.69 and 1.70 of that consent: DA/2004/328 (Exhibit 2). Condition 1.69 and 1.70 read:

“1.69 All work is to be undertaken in accordance with the recommendations numbered 1,3,4,6,7,8 and 9 of Bushfire Assessment by Conacher Travers dated September 2003 (Ref 3424B).
1.70 Asset Protection zones:
The intent of measures is to provide sufficient space for fire fighters and other emergency services personnel, ensuring radiant heat levels permit operations under critical conditions of radiant heat, smoke and embers, while supporting or evacuating occupants. To achieve this the following conditions apply:
(i) the asset protection zones are to be modified to provide a 35m inner protection zone to the northeast and southeast and a 15m outer protection zone in the northeast and southeast.”
(Exhibit 2)

These submissions are supported by the evidence of Mr Swain who states in relation to the existing consent for the adjoining Seniors Housing Development and its relationship to the proposed development for which consent is sought:

“The amended development layout and VMP do not conflict with the requirements of the BFSA issued for the existing seniors living and in fact confirm the provision of the 50m wide APZ to the ease and the management of the creek corridor in accordance with the CVMP to achieve a low hazard within the creek corridor.”
(Exhibit 5)

In the alternative, Ms Reid argues that the Court has insufficient information or assessment of how the proposed development will affect the bushfire management of the adjoining Seniors Housing Development. She argues that the Court could not be satisfied that the proposed development conforms to the specifications and requirements of the applicable version of Planning for Bushfire Protection. Without this satisfaction, Ms Reid argues that it is inappropriate to grant consent to the development.

Findings

Despite the NSW RFS not providing concurrence to the development application, I am satisfied that s 39(6) of the Land and Environment Court Act 1979 allows for the determination of the application irrespective.
Relevantly, s 4.14 of the EPA Act states, in part:

4.14   Consultation and development consent—certain bush fire prone land (cf previous s 79BA)
(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3 (2)) unless the consent authority:
(a)  is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or
(b)  has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
…

I am satisfied that the report titled: Updated Bushfire Protection Assessment, for the proposed development prepared by Mr Swain meets the requirements of subcl (b). In these circumstances, I am not persuaded by the submission of Ms Reid that the grounds of uncertainty of the potential bushfire risk of the proposed development are made out. My reasoning follows.
Following a review of the materials relevant to the development consent for the existing Seniors Housing Development and the applicable conditions of consent of DA/2004/328, I prefer the evidence of Mr Swain and the submissions of Mr Hemmings as they construe the documents. I accept their respective arguments that the Western Creek line is required by the consent of DA/2004/328 to be managed as to not be a fire source. In my view, this is plain in the documents specifically adopted by the NSW RFS in issuing a BFSA for the existing Seniors Housing Development.
This management regime for the Western Creek line for bushfire purposes will continue to be through the provisions of the CVMP (which is adopted by the VMP at 3.1.2: Riparian Corridor, Exhibit BB). Further clarity is provided by Figure 9 of the CVMP which delineates that vegetation with creek line is to be ‘isolated’ or in ‘tree groups with discontinuous canopy’ (Exhibit AA). This is consistent with the requirement for fuel management at Recommendation 4 of the Conacher Travers Bushfire Protection Assessment Report 2003 which forms part of the consent for the existing Seniors Housing Development.
I am satisfied, when properly implemented; the proposed VMP will comply with the requirements of the BFSA of development consent no. 2004/328.
I am satisfied that there are no bushfire safety matters that would warrant the refusal of the application.
On the preceding basis, I am not persuaded that the requirement for the obtaining of a BFSA as a deferred commencement consent as sought by the Respondent is warranted, or appropriately certain in its terms: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [24] – [28] and [54] – [55].
I am satisfied that if consent for the proposed development is warranted, the Applicants proposed Conditions 3-13, 164-165 in Exhibit KK are consistent with the requirements of s 4.17 of the EPA Act and will satisfactorily manage the bushfire risk of the proposed development.

Hydrology and Stormwater Management

A number of issues have been raised in relation to hydrology and stormwater management. The issues centre around: the need or otherwise for onsite detention (OSD) on the site; changes to water quality and water quantity (water balance) arising from the proposed development.
The joint report of the hydrologists documents the following agreements:

“a. In respect of hydrology, the site is not burdened with inherent unsuitability that would prevent its development provided that any such development responds to the site constraints, these being the local groundwater table, existing drainage systems, relatively level ground, and proximity to two mapped coastal wetlands.
b. The majority of the development’s currently proposed stormwater drainage systems and associated earthworks have been designed such that they are not likely to intersect with the natural water table on the site. The development will be created on a fill pad which will generally be more than 3m above the existing ground level on the site. If additional drainage/infiltration systems are deemed to be necessary, these systems will be required to be constructed at least 600mm higher than the natural surface level unless the objective is to recharge ground water.
c. A desired hydrological outcome for the site is to retain surface and groundwater hydrology as close as possible to the existing, albeit modified from natural conditions. To this end, the experts have agreed that whilst the proposed drainage plan seeks to address this requirement, the plans could be further enhanced to achieve a closer approximation of the existing site conditions once the site is developed.”
(Exhibit 6)

Is OSD required?

Relevantly, OSD is addressed at Chapter 2, Section 3.9 of DCP 2012. By reference to "Ballina Shire Council Stormwater Management Standards for Development”, the DCP states that stormwater attenuation is not required when ‘the site discharges directly into the Richmond River or other tidal waterway or waterbody’.
Dr Martens argues OSD is not required on the following grounds:

the development site drains to tidal water and detention is therefore not required in accordance with Council’s DCP; and

some flow attenuation is incorporated into the stormwater drainage scheme by way of the bio-retention systems.

Further, Dr Martens notes that the consent for the existing Seniors Housing Development, discharging to the same location, was not required to provide OSD.
Whilst Dr Martens argues OSD is not required, he argues that

“there is opportunity within the development footprint to further increase the retention, without affecting lot layout or extending beyond the area encompassed by the Site Compatibility Certificate” (Exhibit 6).

In contrast, Dr Johnson, whilst acknowledging the DCP control, argues that “a legal point of discharge is not obtained simply by connecting the drainage system to tidal waters” (Exhibit 6). Further, he argues that the discharge is required to not result in an increased rate of discharge in comparison to predevelopment conditions.
Dr Johnson’s oral evidence is that the discharge is not to a stream that is tidal, but rather a stream that is influenced by the tide. In cross-examination, he detailed the difference as follows: whilst the stream has some degree of title range occurring in it, but it is not reflecting the full tidal range in North Creek, so it is tidally restricted to some extent at its outlet (Tcpt, 19 September 2019, p 181(15)). On this basis, he maintains detention is required.
Despite the disagreement between the experts in relation to the need for OSD, the experts have agreed that the following conditions would affect the provision of OSD, if required by the Court:

1. Prior to the issue of a construction certificate, the stormwater management design is to be updated to include the following amendments and additional details:
a. Bioretention basins are to be modified such that on-site retention is provided for storms up to the 1 in 2 year ARI event.
b. The low flow outlets from bioretention basins 1, 3 and 4 shall be modified to drain to a shallow (say 0.3 m deep) rubble drain to encourage further groundwater infiltration.
i. The length of the drain shall be sized to ensure maximum potential infiltration.
ii. Rubble drains shall be fitted with a central distribution manifold, wrapped in geotextile and covered with 100 mm of topsoil.
iii. Rubble drains shall include regular surcharge points, say spaced at 20 m, which permit the release of bioretention drainage water when groundwater conditions are elevated or when inflow rates exceed infiltration capacity. Surcharge points must be designed to prevent mosquito habitat/breeding.

c. Runoff from much of Road 1 (the site entrance road) which does not drain to the bioretention basins is to be treated via Enviropods (or similar) prior to release.
d. To avoid any potential ponding of stormwater either side of fill placed for Road 1, appropriately sized cross-drainage culverts are to be provided at a minimum of 10 m spacings or where existing low points occur.
e. As part of any application to Council in accordance works with s 138 of the Roads Act 1993 (NSW) to widen North Creek Road, the design should be in accordance with the following principles:
i. Existing sag points and culverts should be retained where possible.
ii. A litter collection device should be installed, subject to Council’s agreement and satisfaction, on the outlet of any existing culverts to North Creek.

2. Prior to issue of a construction certificate, a stormwater maintenance plan shall be prepared for the stormwater management system. The plan is to include the following at a minimum:
a. Vegetation and weed management regimes for the bioretention basins.
b. Annual inspection and certification of the development drainage system to ensure compliance with any conditions of consent.

3. Prior to the issue of a construction certificate, a monitoring plan is to be prepared. The plan is to include the following at a minimum: a. The installation of 3 permanent groundwater monitoring wells to be located along the northern and eastern extents of the development footprint. b. A monitoring regime for groundwater levels and groundwater quality. c. The requirement to prepare an annual groundwater monitoring report to be submitted to Council to demonstrate compliance with any conditions of consent.
(Exhibit 6)

The ecology experts have also provided evidence in relation to the whether the Western Creek is tidal. Mr Howland prepared a preliminary assessment of the degree of tidal influence as an annexure to the Joint Report of the Ecology Experts (Exhibit 9). This assessment included the onsite measurement of changes in water depth at four locations on Western Creek. On the basis of this data. Mr Howland concludes that: ‘the Western Creek line is tidally influence, but not fully tidal’ (Exhibit 9).
Dr Robertson also notes in the Joint Report of the Ecology Experts that the Western Creek is ‘tidally influenced’ (Exhibit 9). Finally, Dr McDonald also notes that:

“vegetation within and adjacent to the Western Creek line including mangroves, saltmarsh and swamp oak flood plain forest all suggest a tidal saline influence on parts of the site” (Exhibit 9).

Mr Hemmings argues that, on the collective evidence of the experts, the Court would be satisfied that OSD is not required as the development control in Chapter 2, Section 3.9 of DCP 2012 is met by the proposed development. He argues that Dr Johnson seeks to apply a higher standard than that required by DCP 2012 which is inconsistent with the provisions of s 4.15(3A) of the EPA Act.
Ms Reid argues that on the evidence of the experts the proposed point of discharge is tidally influenced, but not tidal. She argues that to meet the provisions of DCP 2012, OSD is required.
Further, if the Court determines that OSD is required, she submits that the conditions drafted and agreed by the hydrology experts are not sufficiently certain, particularly in relation to how the proposed rubble drains would interact with the need to prevent mosquito habitat/breeding, to be applied to the consent.

Findings

Further to the above evidence, I note that:

at section.4.2 of the Concept Stormwater Management Plan: Proposed Senior Living Development, 120 North Creek Road (Stormwater Plan), Dr Martens states that:

“The existing hydraulic interactions between the unnamed watercourse and North Creek indicate that the unnamed watercourse is tidally affected and that the proposed development does not require the attenuation of flows” (Exhibit Y).

Further, the Stormwater Plan confirms that the highest astronomical tide (HAT) at Ballina (1.16AHD) is ‘well above the unnamed creek invert levels’ (Exhibit Y).

As part of the implementation of the consent for the adjoining Seniors Housing Development, monitoring of a HAT event was undertaken by Council and the then Applicant in January 2011. The purpose of the inspection was to observe the inundation of the land adjacent the Western Creek line by tidal waters (Exhibit 2, tab G). Further, the consent for the adjacent village required the removal of the existing tidal flood gates, this requirement is detailed in condition 1.24 of DA/2004/327:

“The existing tidal floodgates that service the existing north/south creek shall be removed from the North Creek Road drainage structure. The removal is to be undertaken in conjunction with the creek rehabilitation works” (Exhibit 2, tab G).

It was accepted by the parties that the consent for the adjoining Seniors Housing Development (DA/2004/327) did not require the implementation of OSD on site.

In response to the Applicant’s proposal for the residents to ‘shelter in place’, Mr Collins argues this is unsatisfactory on the following grounds:

as the residents of the proposed development age, many of the people on site will be unsuitable for living in isolated communities. Mr Collins argues this isolation would be up to 54 hours in the 1%AEP event.

water supply, power and essential services may be disrupted during large flood events for extended periods.

some residents will not be capable of self-evacuation.

the potential need for medical evacuations during the period of isolation has not been considered.

the proposed development will put an unreasonable burden on the SES if an evacuation is directed. There are insufficient SES resources to fulfil the demands of the BFRMS without the approval of this development application. The BFRMS identifies 486 SES volunteers required for effective evacuation.

Mr Collins argues that the subject development should be refused as

“neither a shelter in place nor an evacuation strategy for flood emergency management planning are acceptable [for the subject site] and will not adequately mitigate the risk to the aged and special needs residents”
(Exhibit 10).

Further, he argues that the ability to safely manage the risk to residents is a threshold issue that must be dealt with prior to the grant of consent. He argues that the development application should be refused on this basis.

Submissions

Ms Reid notes that the Applicant has not prepared a “resolved flood evacuation/management plan for consideration by the Court and loosely proposes a ‘shelter in place’ approach combined with voluntary evacuation” (Respondent’s written submissions, 20 August 2019, p 56).
Ms Reid submits that this approach is unsatisfactory on the following grounds:

there is no detail of how the residents can be provided with critical services (water, electricity, food etc) in an emergency event.

Mr Collins’ oral evidence was that the local egress route would be flooded (and impassable) for 40 hours (1%AEP) and for about 12 hours in a local flash flood.

there is uncertainty in the evidence of Dr Marten’s and Mr Mead that potable water and back-up power would be available to residents. Dr Johnson’s oral evidence was only “that it is unlikely that potable water and flushing toilets would be available to residents who shelter in place” (Respondent’s written submissions, 20 August 2019, p 57).

it is agreed between the experts that about 30 cubic metres of water/ day would be required for 150 persons. No proposal for a storage tank is included in the development application and it is unclear where it could be accommodated.

Mr Collins refined the duration of the time period residents would be stranded to 40 hours in a 1%AEP event and 12 hours in a local event in his oral evidence. However, he remained of the view that the lack of detail, and the lack of the development of a flood management plan, means there is a lack of certainty that the flood risk of the subject site can be managed within practical limits.

In conclusion, Ms Reid argues that the Court could not be satisfied that it has sufficient information to form a conclusion that the development incorporates appropriate measures to manage risk to life from flood, as required by cl 7.3(3)(c) and (e) of LEP 2012.
Mr Hemmings submits that the subject site has been designed to be flood free in the local and PMF events. Therefore, evacuation is not required to ensure the safety of residents.
Mr Hemmings argues that the Applicant’s decision to adopt a ‘shelter in place’ approach is supported by the BFRMS. Specifically, he notes that the BFRMS evaluates two key storm events: local catchment flooding and PMF. In relation to the local events, he notes that at 3.4 of the BFRMS, it states:

“Rainfall is more intense during short duration events and is likely to overwhelm local drainage systems. In addition, faster flowing water would make driving conditions extremely hazardous. Evacuation is, therefore, not advised during flash flooding events (opinion of the FRMC) and it may be preferable for residents to ‘shelter in place’. Such advice would remain at the discretion of the SES who would balance the relative risks of evacuation against isolation and inundation for a particular flood event.”
(Exhibit A)

Mr Hemmings notes that the above conclusion of the BFRMS for local events is consistent with the evidence of Dr Martens.
Mr Hemmings submits that given: the site is being filled to a level above the PMF; the short duration of the local events (12 hours); the conclusion of the BFRMS that the shelter in place approach is preferable, the approach of the Applicant is appropriate.
Mr Hemmings submits that on the evidence of the BFRMS and Dr Martens there are significant warning time prior to a PMF event. The BFRMS notes that the prediction time for a Richmond River dominated flood is estimated to be 14.5 hours. Similarly the BFRMS notes that the prediction time for an ocean storm surge PMF would be 22 hours.
Mr Hemmings emphasises that that for the shortest prediction time (14.5 hours) the modelled evacuation of zone C (in which the site is located) is noted in the BFRMS as successful with a 2.5 hour margin. Further, Mr Hemmings notes that the evacuation route is modelled in the BFRMS to have 35 hours from the start of the storm until the road is closed by flood waters.
Mr Hemmings concludes that in the time period available from the prediction of the storm, and then from the commencement of the storm, will be sufficient to allow those who wish to self-evacuate the subject site to do so.
Mr Hemmings submits that the proposed development is not a high care facility. Importantly, he notes that whilst the residents are “plainly able to age in place, (they) are all independent living”. He argues that the residents are

“entirely capable of either sheltering in place without emergency risk, or evacuating themselves – within the 25 hour window – or after the 22 hour window (the prediction time) commences – upon receipt of advice from the SES”
(Applicant’s written submissions, 20 August 2019, p 15).

In reply to the submissions of Ms Reid that the ‘shelter in place’ strategy poses a risk to residents, Mr Hemmings argues that this risk needs to be evaluated in the context of the duration of the event. The Ballina Shire Local Flood Plan notes that during the record Richmond River Flood in 1978 the duration of isolation did not exceed 12 hours (Exhibit NN).
Mr Hemmings concludes that the proposal conforms with the Council’s approach to floodplain risk management and that the evidence does not give rise to a reason for refusal of the proposal development on the basis of a risk to life from flood.

Findings

Ballina Shire Local Flood Plan, 3.18: Managing Evacuation Operations at 3.18.1 states: ‘When there is a risk to public safety, evacuation is the primary strategy’. It details the following circumstances where this may occur:

“a. Evacuation of people when their homes or businesses are likely to flood.
b. Evacuation of people who are unsuited to living in isolated circumstances, due to flood waters closing access.
c. Evacuation of people where essential energy and utility services are likely to fail, have failed or where buildings have been made uninhabitable.
d. Evacuation of people when their homes or businesses are at threat of collapse from coastal erosion.”
(Exhibit NN)

I am satisfied on the evidence of the experts, the BFRMS and the facts of the proposed development that the houses proposed by the application are unlikely to flood.
I accept that the sites and the buildings themselves are unlikely to be inundated given the modelling demonstrates that they are flood free to the PMF, including accounting for climate change.
Giving consideration to the serviced nature of the proposed development, its central management and the specific flood characteristics of the locality, I am satisfied that the duration of isolation likely to arise from a ‘shelter in place’ approach is not unreasonable. However, I am persuaded that additional certainty is required prior to the occupation of the development to ensure that appropriate continuity of services are provided to residents to safeguard their health and wellbeing. I am satisfied that this information is capable of being provided and should be included in the consent conditions for the development as follows:

“Integrated Flood Evacuation and Emergency Management Plan
66. An Integrated Flood Evacuation and Emergency Management Plan must be prepared for the proposed development which demonstrates how evacuation and emergencies will be managed. The plan shall demonstrate adequate evacuation is possible having regard to:
The existing Palm Lake Development (2004/328).
Additional time and management strategies necessary to evacuate an elderly population, some of which may not be capable of self-evacuation.
The available evacuation window in the context of road closure/inundation of North Creek Road and Corks Lane.
The anticipated time required to evacuate.
How the proposed strategy will interact with the SES Ballina Shire Local Flood Plan and any implications that the evacuation strategy will have on the SES Ballina Shire Local Flood Plan.
Irrespective of evacuation strategies, on site facilities and services are to be provided to support residents and staff for periods of isolation during major flood events.
As a minimum, this should include:
The provision of sufficient bottled water in the event of water supply failure or contamination for drinking water supply for the projected duration of the 1%AEP event.
Emergency food supplies of sufficient quantity to supply people trapped on site for the projected duration of the 1%AEP event.
A communications facility with radio communication to the SES with on line links to the Bureau of Meteorology for weather and flood warnings, with independent power supply and with sufficient staff and residents trained in its use.
Suitably sized on-site fuel storage for running backup generators.
Internal intercom system to allow communication with all remaining residents irrespective of mains power outages.
At least two staff on site trained in first aid with suitable first aid kits are to be onsite at all times following the release of a relevant flood event warning.
An Integrated Flood Evacuation and Emergency Management Plan is to be submitted to the NSW State Emergency Service and approved by Council, addressing all of these requirements prior to the issue of the first Construction Certificate for the development.
Potable Water – Flood Event
67. If it is planned to stay in place in the event of a flood, an adequate supply of potable water must be provided on site. Details of the water source, storage and quality must be submitted to Council.”

I note that Council, in its conditions, seeks for the Applicant to make provision onsite for a helicopter to land in the event of a medical emergency during a flood occurrence. I am not persuaded that this is a reasonable condition on the following grounds:

the proposed development is a serviced self-care seniors living development, not a facility focussed on high care.

the warning times for the relevant flood events are substantial, and the distance needed to evacuate short. If specific residents have complex medical needs, I am satisfied there is sufficient time for them to self-evacuate.

the proposed development will be obligated, by condition, to have staff on site 24/7 following the release of a relevant flood event warning. They will be available to coordinate residents either sheltering in place or choosing to self-evacuate.

coach style buses are mandated by the consent to be onsite which can be utilised to evacuate residents who wish to do so.

On the preceding basis, I am satisfied a ‘shelter in place’ approach is appropriate for the site.
I am satisfied that the precondition at cl 7.3(3) of LEP 2012 is met by the development.

Town Planning

The issues that remain in contention between the planning experts can be summarised as:

Whether at the conclusion of the evidence given by the technical experts, and giving consideration to the relevant planning controls, the site is suitable for the development proposed.

Whether the development provides an appropriate level of solar access to the proposed dwellings.

The level of detail provided by the Applicant of the impacts that will arise from construction, and whether the construction impacts are reasonable.

Site suitability

As noted at [56], the subject site is mapped on the Strategic Growth Areas Map under LEP 2012. The planning experts agree that cl 7.8 of LEP 2012 seeks to limit development that may prejudice future urban or employment land uses on the land.
Further, the planning experts agree that any habitable use, and many non-habitable uses, on the land would require modification of the land form to address flooding constraints (Exhibit 3).
Finally, the experts agree:

“The potential adverse impacts of the proposal on neighbouring properties are limited to the properties fronting North Creek Road, being Nos. 174, 186 and 200 and that potential visual and character impacts are limited to these properties. The proposal will not cause any unacceptable visual or character impacts viewed from the public domain or as viewed from the existing seniors facility to the west”
(Exhibit 3).

It is Ms McCabe’s evidence that the site is not suitable for the proposed development on the following grounds:

an excessive amount of fill is required for the site to be made suitable for residential use;

the proposed development will result in the removal of vegetation in the Western Creek that is required to be retained under the approval for the existing Seniors Housing Development, as well as in parts of the site mapped as ‘proximity to coastal wetland’;

to mitigate the potential impacts arising from road noise on the new access way from North Creek Road, both during construction and on an ongoing basis, the Applicant seeks to construct a 2m high acoustic fence. This will significantly impact on the amenity of the adjoining property owners;

during a flood event residents sheltering in place will have limited access to food and medical services as they are proposed to be provided by a third party – not from a facility within the proposed development;

Any development encroaching on the land mapped as ‘proximity to coastal wetland’ is not supportable on planning grounds.

Further, Ms McCabe argues that “having regard to the provision of clause 25(5)(b) [of SEPP HSPD] the proposed development is not compatible with surrounding land uses” (Exhibit 3). Her reasoning is as follows:

“- The development unreasonably encroaches in land identified as proximity to wetlands and results in the removal of Endangered Ecological Community.
- The degree of land form change to accommodate the form and scale of the use is unreasonable.
- Precludes more sensitive and appropriate uses being made for the lands.
- Entrenches vulnerable uses in lands subject to flooding.
- The intensity of development is inconsistent with that found or anticipated in the RU2 Rural Landscape Zone and on adjoining lands in the east and south.”

In contrast to Ms McCabe, Mr Mead argues that the strategic planning framework for the site promotes its development for urban growth and that this distinction of the land in LEP 2012 should be given appropriate weight in the determination of the application.
Mr Mead concludes that if the expert evidence is that the site constraints can be dealt with then it is his opinion that the proposed development is a good planning outcome as it directly responds to the strategic planning framework (Exhibit 3).
Mr Mead also notes that the intensity of the development has been substantially reduced in comparison to the development for which the SCC was granted (77 dwellings now sought instead of the previous 177). He argues that the amendments to the proposed development have responded to the technical assessment of the sites constraints, consistent with the matters identified in the schedule to the SCC.
In response to Ms McCabe’s evidence that the extent of fill is unreasonable, Mr Mead argues:

“76. The proposal incorporates ‘edge planting’ at all interfaces with adjoining properties including several large trees that will screen or filter views from adjoining properties in addition to the extensive boundary planning that exists on those properties. The built form is limited to single storey across the site and therefore the visual impacts of the development which sits above the fill level is minimised. The character of the development in terms of height above existing ground level is compatible with existing surrounding development. Accordingly, the proposal positively responds to the flood constraint through its design, particularly setbacks, its approach to grading, site landscaping and the scale of buildings on the filled area.”
(Exhibit 3)

In relation to the impact to the adjoining properties from noise, Mr Mead relies on the conclusion of the Acoustic Report which states that with the proposed 2m high acoustic fence the relevant acoustic criteria at the adjoining properties will be met. Further, Mr Mead argues that the impact arises not from the Seniors Housing use, but from the traffic accessing the site.
Further, in considering the acoustic impact of this traffic Mr Mead argues that weight should be given to Council’s intentions for North Creek Road to be linked and upgraded. It is his evidence that these works by Council will also increase traffic noise to the adjoining properties.
Finally, Mr Mead argues that whilst the consent authority must undertake its own assessment of the application it is appropriate that weight be given to the fact that, at a fundamental level, the Department of Planning and Environment formed an opinion that the development was compatible with the surrounding land uses having regard to: the natural environment; the impact of the proposed development; the ability of services to meet demand; and the impact of the bulk, scale, built form and character of the proposed development. They were required to form this view prior to determining to issue the SCC.

Solar Access

Clause 35 of SEPP HSPD requires the development to: provide adequate daylight to main living areas and sunlight to private open space; and utilise dwelling design and landscaping to reduces energy use and make the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.
Clause 50 of SEPP HSPD contains provisions that cannot be used to refuse a development application. At cl 50(e), the solar access requirements read as follows:

if living rooms and private open spaces for a minimum of 70% of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm mid-winter.

Initially, in the joint report, Ms McCabe raised concern that the proposed development provided a low level of compliance to the primary living space (34%).
Following the joint conferencing, the Applicant prepared amended plans to address the provision of solar access to the proposed dwellings. The amended architectural plans (Exhibit MM) demonstrate that the primary living areas of the 70% of proposed dwellings achieve three hours sunlight as required by cl 50(e) of SEPP HSPD.
The parties closing submissions indicate this matter is now resolved and the level of solar access to the proposed dwellings is considered to be satisfactory.

Construction Impacts

Ms McCabe argues that the lack of a construction management plan means that the actual impacts of the construction of the proposed development as well as possible mitigation measures are not fully understood. It is Ms McCabe’s evidence that these impacts should be understood and assessed prior to the granting of consent. Further, she argues that alternative means of construction access that may limit impacts to the adjoining properties have not been explored (Exhibit 3).

It is Ms McCabe’s evidence that it is likely to take some 207 days for the fill required for the proposed development to be delivered to the subject site. This accords with evidence of the traffic experts in Exhibit 14. The traffic experts provide three scenarios for the conveyance of fill:

“12 Hour operation: 8 Trucks per hour, 1 Truck every 7 minutes
8 Hour operation: 13 Trucks per hour, 1 Truck every 5 minutes
6 Hour operation: 17 Trucks per hour, 1 truck every 4 minutes”
(Exhibit 14)

The traffic experts conclude that the truck movements required to deliver the volume of fill would continue for 41 weeks if a five day week is adopted and 35 weeks if a six day working week is adopted (Exhibit 14).
Ms McCabe concludes that:

“This is a significant impact on the amenity and enjoyment of the adjoining properties particularly given the mitigation measures in the form of an acoustic wall in a non-urban environment. A mitigation measure that is not appropriate in this setting. These impacts will be in the form of:
- Noise;
- Dust;
- Disturbance to the enjoyment of the property; and
- Alteration to outlook.”
(Exhibit 3)

It is Ms McCabe’s evidence that the scale of the works and the sensitivity of the subject site means that a construction management plan is required prior to the grant of consent and should not be conditioned.
Mr Mead’s evidence is that whilst impacts arising from the construction of the development are inevitable, they should be minimised as far as practicable. In order to achieve this aim, Mr Mead’s evidence is that:

“The acoustic fencing should be implemented prior to construction to assist with noise reduction and a detailed construction management plan should be required as a condition of development consent. The NSW Construction Noise Guide prepared by the EPA provides initiatives for minimising impacts as much as is practical using various work practises and management strategies and I have considered some of its content. I note that other experts have raised issues that should be included in such a plan. From a planning point of view, that plan should address the following matters:
Dust management;
Noise minimisation initiatives (developed in conjunction with an acoustic expert);
Driver induction (including introduction to the CMP);
Control of work times to standard daytime hours;
Managing trucking routes and times to avoid early morning and late afternoon noise impacts;
Minimising truck movements by using high capacity vehicles and ensuring backloads where feasible;
Ensuring there is a robust and reliable communication and complaints management process and appropriate responses to complaint;
Providing respite from noise impacts if practicable (for example, a campaign of trucking followed by a break while soil is placed and compacted);
Making strategic use of stockpiles and other barriers to minimise noise impacts from trucking and earthmoving equipment;
Maintaining a good quality access road with a smooth surface (i.e. a regular grading program);
Movement alarms on vehicles and equipment should be of the non-tonal type; and
The noise minimisation work practices included in the CMP should be included as specific requirements in supplier contracts.”

(Exhibit 3)

Mr Mead concludes that the imposition of the proceeding will not eliminate impacts from the construction, but will assist in minimising the to the extent practical.

Submissions

Mr Hemmings submits that Ms McCabe’s evidence does not give sufficient weight to the identification of the land as within the Strategic Urban Growth Area (cl 7.8 of LEP 2012) and the Council’s strategic intent for the growth of the precinct.
Mr Hemmings argues that this strategic intent is demonstrated in the Council’s Flood Risk Management Study and its Contributions Plan which respectively shown the subject site filled and include substantial upgrade works to North Creek Road.
Mr Hemmings submits, on the evidence of the experts, the contention of the Council that the site is fundamentally unsuitable for the development is not made out.
Ms Reid argues that the Court should exercise its power under cl 24(3)(a)(ii) of SEPP HSPD to determine the site is not suitable for the proposed development. Her reasoning is as follows:

the legislative framework has changed since the issue of the SCC;

the SCC itself identifies areas in Schedule 2 of the certificate that warrant further consideration

that, on the evidence of Mr Collins, the flood characteristics of the site and the proposed use make neither a shelter in place or an evacuation of the site acceptable.

that the remaining experts either identify impacts or uncertainty in the form of the development proposed.

Findings

As demonstrated by my reasoning and findings on the preceding issues in dispute between the parties, I am not persuaded by the evidence of Ms McCabe that the site is not suitable for the development proposed.
Further, consistent with BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117], it is appropriate to give weight to the designation within LEP 2012 of the site as being part of a strategic growth area. Whilst this is not the equivalent of a zoning designation for the site, in concert with the other strategic documents identified by Mr Hemmings, it is a relevant consideration.
I accept the evidence of Mr Mead, at [363] that in this context the filling of the site is acceptable and the manner in which it is proposed to be implemented is appropriate.
Giving consideration to the whole of the evidence, I am satisfied that the subject site is suitable for the proposed development (s 4.15(1)(b) of the EPA Act).
Further, I am satisfied that the likely noise impacts arising from the development are appropriately mitigated by the acoustic wall and the proposed conditions of consent.
In relation to the impacts arising from construction, I accept the evidence of Mr Mead that they are appropriately managed through a condition that requires the preparation of a Construction Environmental Management Plan. I am satisfied that the detail and breadth of evidence before the Court is sufficient to make an assessment of the impacts and a determination that those impacts are acceptable. The proposed condition is included in Annexure A at Condition 59.

Conclusion of assessment

After consideration of the development against s 4.15 of the EPA Act, the submissions received from members of the public and the relevant statutory and policy provisions, I am satisfied that the proposal is suitable for the site and has no detrimental impacts that would warrant refusal.
I find that the application merits approval subject to conditions.

Conditions of Consent

At the conclusion of the hearing, the parties proposed competing sets of consent conditions. Consistent with my findings on the issues in dispute between the parties, I have applied the appropriate conditions to mirror my findings on the specific areas of contention. It is, however, appropriate to make some final remarks in relation to the matters proposed to be deferred conditions in the consent.
Section 4.16(3) of the EPA Act provides that a development consent may be granted subject to a condition that the consent is not to operate until the Applicant satisfies the consent authority as to a matter specified in the condition. In this matter, the Respondent proposes a raft of deferred commencement conditions on matters ranging from the VMP, Bushfire Management, and Mosquito Management etc.
Pursuant to s 4.17(1) of the EPA Act, the consent authority may impose a condition of development consent if:

(a) it relates to any matter referred to in section 4.15 (1) of relevance to the development the subject of the consent, or
…
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1), or
(g) it modifies details of the development the subject of the development application, or
…

Relevantly, s 4.17(4) requires that conditions are expressed in terms of outcomes or objectives and requires conditions to expressed in a manner that identifies both of the following:

one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

clear criteria against which achievement of the outcome or objective must be assessed.

Conditions applied on a consent relate to the development for which consent is sought.
In order for conditions to be successful, they need to be clear and certain, as outlined in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 which states at [24]:

“[that there is no lawful development consent where the consent falls into one of two categories] the first category is where a condition has the effect of ‘significantly altering the development in respect of which the application is made’: at 737B; 351 (Priestly JA). The second category is where Council has purportedly granted consent, but in terms which lack finality or certainty, so that there is, in substance, no effective consent to the application.”

The question of whether a condition is final and certain is addressed in Youngv Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191 at [46] as follows:

“To answer the question as to whether Condition 1 is final and certain, one asks, whether the condition allows the consent to be fundamentally or significantly altered by the subsequent determination of the matter which has been deferred. If it is possible that, consequent upon the matter which has been left open the consent is ultimately implemented may be significantly different from that which the consent purportedly approved, then the condition falls foul of the requirement that it be final and certain.
…”

I am satisfied that the implementation of the deferred commencement conditions proposed by the Respondent would require a number of steps and coordination with a range experts to ensure an appropriate balancing of impacts and benefits. Given this, I find that the wording of the Respondent’s proposed deferred commencement conditions (with the exception of 16: Separate Application for works in North Creek Road) are not final and certain.
A separate consideration in determining whether the proposed deferred commencement condition is appropriate is whether it results in the deferral of essential matters (Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88). I am satisfied the matters sought to be included in the Respondent’s proposed deferred commencement conditions (with the exception of 16: Separate Application for works in North Creek Road) fail on this consideration.
The final set of consent conditions, consistent with the preceding and the findings in the judgment are annexed.

Orders

The Court orders that:

The appeal is upheld.

Development application DA/0018/321 for the staged erection of 75 serviced self-care dwellings, car parking, road construction (including an access way off North Creek Road), earthworks, site filling, stormwater management, infrastructure works, vegetation removal, environmental protection works and associated works under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at 120 North Creek Road (Lot 11 DP 1245510) is approved subject to the conditions at Annexure A.

The exhibits other than Exhibits 1, 22, A, H, MM are returned.

…………….

D M Dickson

Commissioner of the Court

Annexure A (773 KB, pdf)

**********

Decision last updated: 04 October 2019

Medium Neutral Citation:	Palm Lake Works Pty Ltd v Ballina Shire Council [2019] NSWLEC 1479
Hearing dates:	15 – 18 July 2019; 22 July 2019; 19-20 August 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development application DA/0018/321 for the staged erection of 75 serviced self-care dwellings, car parking, road construction (including an access way off North Creek Road), earthworks, site filling, stormwater management, infrastructure works, vegetation removal, environmental protection works and other associated works under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at 120 North Creek Road (Lot 11 DP 1245510) is approved subject to the conditions at Annexure A. (3) The exhibits other than Exhibits 1, 22, A, H, MM are returned.
Catchwords:	DEVELOPMENT APPLICATION –expansion of seniors housing development – serviced self-care housing – suitability of the site for the development – certainty of road works in North Creek Road – provision of safe sight distance at new intersection – site compatibility certificate – priority oyster aquaculture area – impact of development on adjoining neighbours – mosquito management – impacts on ecology – public interest – appeal upheld
Legislation Cited:	Biodiversity Conservation Act 2016 Biodiversity Conservation Regulation 2017 Environmental Planning and Assessment Act 1979 Fisheries Management Regulation 2010 Land and Environment Court Act 1979 Retirement Villages Act 1999 Roads Act 1993 Rural Fires Act 1997 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 62 – Sustainable Aquaculture
Cases Cited:	Argyropolous v Canterbury Municipal Council (1988) 66 LGERA 203 Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31 Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 CEAL Limited v Minister for Planning (2007) 159 LGERA 232; [2007] NSWLEC 302 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Dickinson Property Group Pty Ltd v Wollondilly Shire Council [2019] NSWLEC 1220 Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Hoxton Park Residents Action Group Inc. v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349 Jonah Pty Ltd v Pittwater Council (2006) 144 LEGERA 408; [2006] NSWLEC 99 Kindimindi Investments Pty Ltd v Lane Cove Council (2006)143 LGERA 277 Oshlack v Rous Water (No 2) (2012) 189 LGERA 243; [2012] NSWLEC 111 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Young v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191
Texts Cited:	Australian Standard AS2890.1 2004 Austroads Guide to Road Design Ballina Development Control Plan 2012 Ballina Flood Risk Management Strategy Ballina Shire Council Stormwater Management Standards for Development Dispersal of the Mosquito Aedes vigilax from Urban Estuarine Wetlands in Sydney, Australia, Journal of Medical Entomology in 2019 Healthy Estuaries for Healthy Oysters, NSW DPI 2017 NSW Noise Policy NSW Oyster Industry Strategy Planning for Bush Fire Protection, Department of Planning, 2006
Category:	Principal judgment
Parties:	Palm Lake Works Pty Ltd (Applicant) Ballina Shire Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) J Reid (Respondent) Solicitors: Mills Oakley (Applicant) Parker & Kissane Solicitors (Respondent)
File Number(s):	2018/00326045
Publication restriction:	No

Area of Expertise	Applicant	Respondent
Town Planning	Mr JMead	Ms A McCabe
Entomology (Mosquito)	Mr Dl McGinn	Dr C Ewart
Bushfire	Mr G Swain	Mr P Thorton
Hydrology	Dr D Martens	Dr T Johnson
Geotechnical	Dr D Martens	Dr P Shaw
Ecology	Dr D Robertson	Mr M Howland, Dr McDonald
Flood Engineering	Dr D Martens	Mr N Collins
Traffic Engineering	Mr D Kleinmeyer	Mr S Healey