Port Stephens Council v Randell
[2000] NSWLEC 108
•06/14/2000
Land and Environment Court
of New South Wales
CITATION: Port Stephens Council v Randell [2000] NSWLEC 108 PARTIES: APPLICANT
RESPONDENT
Port Stephens Council
RandellFILE NUMBER(S): 40121 of 1999 CORAM: Cowdroy J KEY ISSUES: Development Consent :- construction of dams without development consent - whether ancillary use of land - SEPP 4 having no application - orders requiring removal of dams LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1) CASES CITED: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGERA 404;
CB Investments Pty Limited v Colo Shire Council (1980) 41 LGERA 270 ;
Foodbarn Pty Limited v Solicitor General for the State of New South Wales 32 LGERA 157;
Lizzio v Ryde Municipal Council (1984) 52 LGERA 116 ;
Macquarie Health Clinic v University of Sydney (1998) 98 LGERA 218 ;
Mitchell v Vella (1998) 101 LGERA 333 ;
Ousley v Warringah Shire Council (1999) 104 LGERA 250;
Woollahra Municipal Council v Minister for the Environment 23 NSWLR 710DATES OF HEARING: 16/5/00, 17/5/00, 18/5/00, 19/5/00, 22/5/00 DATE OF JUDGMENT:
06/14/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr J Maston (Barrister)SOLICITORS
Sparke HelmoreRESPONDENT
SOLICITORS
Mr J Robson (Barrister)
Deacon Graham James
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40121 of 1999
CORAM: Cowdroy J
DECISION DATE: 14 June 2000
Applicant
Respondent
JUDGMENT
Background
1. By application class four the Port Stephens Council (“the council”) seeks declarations and orders as provided in the ‘Alternative Short Minutes of Order’ against Anthony Victor Randell (“the respondent”). The council seeks the removal of earth dams (“the dams”) at the respondent’s property on Lot 114 DP 752451 known as 36 Dunns Creek Road, Dunns Creek (“the land”). The land comprises approximately 40 hectares and is located within the Port Stephens Shire. Pursuant to the Port Stephens Local Environmental Plan 1987 (“the LEP”) the land is zoned Rural 1(A) and is used for agricultural purposes.
2. There are six dams upon the land which for identification shall be referred to as Dam A, Dam B, Dam C, Dam D, Dam E and Dam F. Only dams A, B, C and F are the subject of challenge in these proceedings. Such dams were either constructed or improved by the respondent who is experienced in earth moving and who owns heavy earth-moving equipment.
3. Dam A is located on the southern boundary of the land adjacent to Forrest Road. Such dam has been in existence for at least 34 years. The respondent has undertaken improvements to such dam on at least three occasions. Between late 1995 and early 1996, the respondent used his own earth-moving equipment to remove debris from such dam and to add approximately 600 mm to the dam wall resulting in an increased storage capacity. Aerial photography has been used to estimate that the surface area of Dam A is 6,370 m2 and such dam is estimated by council to contain 4.93 megalitres (ML) of water.
4. Dam B is located slightly to the north of Dam A. It was constructed in 1972 with a half metre wide spill way. Between 1995 and 1996 the respondent made similar improvements to such dam as he had made to Dam A. The respondent also filled a portion of the spill way in order to achieve a greater retention rate from the small catchment area adjacent to Dam B. Dam B is estimated by council to have a surface area of 8,160 m2 and to contain 9.47 ML of water.
5. Dam C was constructed in or about 1996. Such dam has a surface area of 6,320 m2 and contains approximately 5.42 ML of water. Dams A, B and C lie a gully system which crosses Forest Road about 300 m east of the intersection with Dunns Creek Road.
6. Dam D was constructed in approximately 1970 and is estimated by council to have a surface area of approximately 680 m2 . Dam E has an area of 580 m2. Neither Dam D or Dam E are the subject of challenge in these proceedings.
7. Dam F is a substantial dam having a surface area of approximately 5,690 m2. It is estimated by council to contain 6.9 ML of water. Such dam was constructed over a rock ledge which previously acted as a catchment for a watercourse known as Blow Fly Creek (“the creek”). The wall of Dam F serves to interrupt the flow of water in the creek.
8. The construction of Dam C and Dam F and the modification of Dam A and Dam B were brought to council’s attention as a consequence of the observation by a neighbour that there was an increase in silt in the creek. Additionally the neighbour noticed that following the construction of Dam F the run-off from the creek into a dam on their property was reduced. Subsequent to receiving such information council officers inspected the land and observed the existence of the new and modified dams and ascertained that council had not given consent for such development.
9. Following council’s investigations, the respondent consulted the Department of Land & Water Conservation (“DLWC”). Mr Ronald Main, a representative from DLWC visited the land and inspected Dam F. He was concerned that the spill way of such dam was too narrow and that a formal outflow channel was required. The respondent was informed by DLWC that unless a permit pursuant to the provisions of Pt 3A of the Rivers and Foreshores Improvement Act 1948 (“RFI Act”) was issued any development application submitted to council could not be approved since such application would constitute ‘integrated development’ as defined in s 91 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Accordingly on 28 June 1998 the respondent lodged an application in respect of Dam F with DLWC pursuant to Pt 3A of the RFI Act.
10. The respondent also lodged a development application number D341/99 (“the application”) with the council on 9 March 1999 following notification from the council that it intended to institute legal action in respect of the unauthorised dams. Council considered the application at a Sustainable Development Committee (“the committee”) meeting on 1 June 1999 and reported that of the six dams on the land, all had design faults and work would be required to rectify such deficiencies. Such report also referred to the fact that council could not retrospectively grant approval to the construction of Dam C and Dam F. The committee reported that the intent of the application was to retrospectively legalise construction of Dam F and it recommended that the application should be refused. Council so resolved on 15 June 1999 and the respondent was notified of the refusal of the application by letter dated 16 June 1999.
Council’s submission
11. The council submits that the construction of the two new dams, namely Dam C and Dam F and the alteration to Dams A and Dam B constitutes a breach of s 76A(1) of the EP&A Act. Such section provides:-
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
No consent was ever sought prior to the construction of the dams upon the land.
12. The relevant ‘ environmental planning instrument’ is the LEP and the Environmental Planning and Assessment Model Provisions 1980 (“the Model Provisions”) which are incorporated therein. Clause 9(2) of the LEP permits the land to be utilised for the purpose of agriculture without development consent. The opening words of cl 9(2) of the LEP provide:-
Except as otherwise provided by this plan, in relation to land within a zone specified in the table to this clause, the purposes (if any) for which -
(a) Development may be carried out without development consent
(b) and (c) not relevant
- are specified under the headings development consent, ‘only with development consent’ and ‘prohibited’, respectively, appearing in the matter relating to the zone.
- Clause 6 of the LEP permits land in the Rural 1(A) zone to be used for agricultural purposes without consent. However cl 29 of the Model Provisions provides:-
- A person shall not construct a dam on any land except with the consent of the consent authority.
13. The council submits that the amount of water harvested by the dams is clearly excessive. The DLWC publication entitled ‘Farm Dams Property Assessment Guide Recording Sheet - Adding Value to the Nature Assets of New South Wales’ provides a method of assessing the amount of water required by a farm. Pursuant to its provisions, the assessed maximum harvestable right dam capacity (“MHRDC”) in respect of land used for agricultural purposes such as that of the respondent is 4.156 ML per annum. Presently the existing dams built on the property (excluding dams D & E) harvest 26.72 ML per annum which is 22.56 ML per annum in excess of the MHRDC.
14. As detailed hereunder, the respondent uses the land to agist his stock which are usually located at a nearby property at Morpeth (“the Morpeth property”). Mr Edward James Smith, an agricultural consultant retained by council has considered the capacity of the land. He estimates that during the flooding periods when stock are removed from the Morpeth property to the land there would be sufficient feed for approximately three to four months. On that basis the total stock water supply required on the lands is 2.8 ML per year or, for a four month period 0.9 ML. For the rest of the year allowing 15 cows and calves and a bull the usage would be 0.43 ML per year. Mr Smith concluded:-
Therefore the generous total water requirements for the Dunns Creek Road property in a maximum stock carrying capacity year of four months with a hundred cows and calves plus another fifteen cows and calves for the entire year would need around:-
0.9 ML +
- 0.3 ML
1.36 ML
15. Mr Raymond Hanson the council’s engineer has identified several matters of concern in relation to the construction of the dam walls. Mr Hanson maintained that Dam A was liable to overflow into Forrest Road, in a manner shown in a photograph tendered in evidence. He considered that the spillway was inadequate both in terms of surface and cross-sectional area to cope with the catchment size in the event of a major storm. He could not assess the internal structural integrity of the dam wall.
16. Council contends Dam B would overflow directly into Dam A. Council submits the spillway of Dam B is almost non-existent and that there is not sufficient freeboard in Dam B. A freeboard comprises the difference between the height of the water within the dam and the top of the dam wall. Mr Hanson observed some defects in Dam B such as the growth of trees in the wall batter, slumping of heavy soil at the northern end thereof and a significant leak in the south-eastern end of the wall.
17. Dam C overflows directly into Dam B. Dam C has a spillway at the eastern end of its dam wall. Mr Hanson regarded such spillway as inadequate and noticed erosion and slumping in the middle of the outer face of the wall of Dam C. He did not regard the downstream flow path of the spillway as satisfactory. He was unable to assess the internal dam structural integrity of the dam wall.
18. The council submitted that Dam D did not pose concern except for the risk of a cumulative effect if there was a failure of Dams A to D. Similarly Mr Hanson observed that Dam E was, by itself not of significance in terms of failure risk but that the presence of trees in the wall batter could cause ‘piping’ that is, a leak in the dam wall.
19. Mr Hanson observed that the spillway of Dam F had exposed soil which required stabilisation. He noticed erosion in a downstream constructed watercourse leading away from such spillway and that there was potential for large scale erosion in the event of a major storm. His concern in relation to Dam F was essentially related to erosion. He was not able to assess the internal integrity of the dam wall of Dam F.
20. The council submits that the environmental impact of the dams is of concern. Ms Rosemary Rohr, the Environmental and Health Department Officer with council provided evidence that Dam F blocked water flows to the creek system of Blow Fly Creek. She testified that micro-organisms and plankton could be disturbed and affected by the daming of a watercourse since they are reliant upon continued supply of water. She was also concerned that the spillway of Dam F would cause gully erosion and maintained there was a possibility that the construction of Dam F in the watercourse could cause a change in the ecosystem of the creek surrounds. She testified that whilst Dam F only covered 0.2% of the Blow Fly Creek catchment area it nevertheless had the capacity to catch all run-off from that area and thus the potential to alter the hydrology of the creek system.
21. Council also submits that the construction of Dam F constituted ‘ designated development’ within the meaning of cl 49 of the Environmental Planning and Assessment Regulation 1994 and Schedule 3 thereto. The relevant category in Schedule 3 is ‘artificial waterbodies’ which are defined as:-
Artificial waterbodies:
1. with a maximum aggregate surface area of water of more than 0.5 hectares located:
(a) In or within 40 metres of a natural water body …
- Schedule 3, Pt 3 defines ‘natural water body’ relevantly as:
- A river or stream, whether perennial or intermittent, flowing in a natural channel with an established bed or in a natural channel artificially modifying the course of the stream.
- Whilst council submitted that the construction of Dam C also constituted ‘designated development’, the evidence and submissions in support of such contention were not strongly pressed.
Respondent’s submissions
22. The respondent submits that the construction of the dams was ancillary or incidental to the agricultural activity on the lands and that consent for such use was not therefore required. The term ‘ agriculture ’ as defined in cl 5 of the LEP includes the use of raising and keeping stock and includes horticulture and the use of land for husbandry but does not extend to intensive animal husbandry or aqua culture. In reliance upon cl 15 of the LEP such the respondent argues that the provision of water for stock is an ancillary use to an authorised use of the land, namely agriculture.
23. The respondent relies upon the principle that an ancillary use does not necessarily constitute an independent use of the land and relies upon authorities such as: Baulkam Hills Shire Council v O’Donnell (1990) 69 LGERA 404 at 409 per Meagher JA; see also Foodbarn Pty Limited v Solicitor General for the State of New South Wales 32 LGERA 157 at 160; and Lizzio v Ryde Municipal Council (1984) 52 LGERA 116 at 117. The respondent also submits that the characterisation of the works is to be considered objectively; see Woollahra Municipal Council v Minister for the Environment 23 NSWLR 710, (1991) 73 LGERA 379 at 382; Macquarie Health Clinic v University of Sydney (1998) 98 LGERA 218 at 221 per Stein JA. In Macquarie Health Clinic v University of Sydney, Stein JA observed at 223 that work may constitute an ancillary use and that use may not necessarily be ‘ minor ’.
24. The applicant further relies upon various matters pertaining to judicial discretion and submits that taking into account the use of the land the Court would make no order. The respondent has given evidence that flooding occurs on the Morpeth property which occasionally has required him to transfer his cattle to the land. The respondent’s intention in constructing and modifying the dams was to ensure that the land was drought-proof thus enabling his cattle to survive any prolonged period without rain.
25. The respondent also submits that the provisions of State Environmental Planning Policy No 4 (“SEPP 4”) are applicable. Clause 3 of SEPP 4 provides:-
3 This Policy is designed to permit development for a purpose which is of minor environmental significance, development for certain purposes by public utility undertakings and development on certain land reserved or dedicated under The National Parks and Wildlife Act, 1974, without the necessity for development consent being obtained therefor, where-
(a) the carrying out of that development is not prohibited under the Act, except by reason only of a requirement for the obtaining of development consent before that development may be carried out; and
(b) the development is carried out in accordance with any development standard applying in respect of the development,
but without affecting any requirement to obtain consent or approval under any other Act in respect of the carrying out of development.
26. Clause 10(1) of SEPP 4 provides:-
10 (1) This clause applies to development on land for a purpose that is ancillary or incidental to a purpose for which the land may be used, being development -
(a) for the purpose of parking, loading facilities, drainage, workers amenities, pollution control, security or for other similar purpose; or
(b) which consists of the erection of fences, garages, fuel sheds, tool houses, milking bails, haysheds, stables, fowl houses, pig sties, barns and the like.
27. The respondent has constructed over 2,000 earth dams and has supplied evidence of his earth moving experience and skill in the construction of dams. He considered that the new and modified dams were structurally sound. Since the dams had come to the notice of DLWC he had made certain amendments to the spillway of Dam F as directed by Mr Main.
28. The respondent’s evidence was supported by Mr John Harvey, a principal of Douglas Partners, experts in geotechnics, the environment and groundwater. Mr Harvey inspected all of the dams and concluded that from a geotechnical engineering perspective the dams are in relatively good condition. He recommended further assessment and monitoring but acknowledged that since he was not involved in the construction of the dams he was unable to testify as to the structural integrity of the dam walls.
29. Mr Michael Shelly, a project director of ERM Mitchell McCotter, a firm expert in assessing soil erosion, water and similar matters provided evidence concerning Dam F. He explained that it was shallow and had a capacity of 6,900 m3. Dam F is located approximately 250 m upstream of Dunns Creek and 600 m upstream of the confluence of Blow Fly Creek and Dunns Creek. Dunns creek flows into the Paterson River approximately 3.5 km from such confluence. Mr Shelly opined that it was unlikely that Dam F had significantly affected local hydrology and considered that its construction had produced a new aquatic environment which would support significantly higher biomass of micro-organisms. Mr Shelly did not consider that the spillway of Dam F which he understood had been altered pursuant to the instructions received from council or DLWC was of any real significance.
Findings
30. Hope JA in CB Investments Pty Limited v Colo Shire Council (1980) 41 LGERA 270 at 272 observed that a dam could be an ancillary use to an agricultural use of land. However His Honour’s statement must be read with the principles of ancillary use. Such principles were referred to in CB Investments Pty Limited v Colo Shire Council per Hope JA at 272 as the ‘ character, extent or other features of the activities’ that are to be considered in order to assess whether the challenged activity is one which is ‘ ancillary’ to another use which is permissible (see also Reynolds JA at 276). Taking into consideration all of the evidence, the respondent has not demonstrated that construction of the dams of the magnitude and proliferation that has occurred on the land is ancillary to the use of the land as an agricultural property. No evidence was called to suggest that Mr Smith was in error in his estimate of the water usage requirements for the land pursuant to the number of cattle estimated by the respondent to be held on the land. Nor did the respondent provide sufficient explanation to justify such an excessive storage of water on the land.
31. Pursuant to cl 29 of the Model Provisions the construction of a dam requires the consent of the council. The use of the land being that of agriculture does not entitle the respondent to undertake an activity for which consent is expressly required pursuant to the LEP. In Foodbarn Pty Limited and Ors v Solicitor General Glass JA at 160 said:-
An ordinance which sets out to provide a catalogue of activities, some of which are permitted and others prohibited could hardly intend that the prohibited activity would be acceptable if allied to some other permitted activity. A prohibited purpose is equally repugnant to the planning scheme, whether or not it be carried out in isolation from other purposes.
32. The Court finds that there is no occasion for the application of SEPP 4. It could not be found upon the evidence that the dams and especially Dam F are of minor environmental significance nor ancillary or subsidiary to the purpose of agriculture. Cl 3 of the SEPP 4 is directed to development which has minor environmental influence (see Ousley v Warringah Shire Council (1999) 104 LGERA 250.) Further, cl 10(1)(a) of SEPP 4 contains a list of specific ancillary purposes, such purposes do not include dams. The terminology of such clause does not suggest dams are ‘like’ structures as listed therein.
33. It follows that the failure to obtain development consent for the construction of Dam C and Dam F and the alterations to Dams A and B is in breach of s 76A(1) of the EP&A Act. Development consent was required and upon the unchallenged evidence, the construction of Dam F constituted designated development because of its location across a ‘ river or stream’ as defined, namely Blowfly Creek: see Mitchell v Vella (1998) 101 LGERA 333 at 346-347.
Exercise of the Court’s discretion
34. Evidence has been adduced from the respondent relating to the responsible management and administration of the land. The respondent explained that the land is divided into four paddocks and the dams are all necessary to ensure an adequate water supply in each paddock. There is no residence on the land but rather a building comprising a hay and machinery shed. Since purchasing the property in 1966 the respondent has observed the water flows of the creek and his concern is to ensure that the property has sufficient water in view of the high evaporation which he states occurs in the Dunns Creek valley. Despite his expressed intent the Court has concluded that on the evidence the quantity of water stored on the land is clearly excessive and beyond any realistic need to provide for stock.
35. The respondent says that he was never aware of the requirement to obtain consent to construct dams. Although it is difficult to accept that a person who is engaged in the very industry of dam construction was unaware of such requirement, the Court accepts such testimony which was not subject to serious challenge.
36. The fact remains that Dam F and possibly Dam C are severely impeding the catchment of water that would otherwise flow in Dunns Creek and Blow Fly Creek. A complaint has already been received by a downstream landholder that the water in Blow Fly Creek has been reduced and contains more silt since the construction of Dam F. It is also apparent that the catchment of Dam C would trap a substantial amount of water such water would otherwise flow to neighbouring riparian land owners adjoining Dunns Creek and ultimately other landowners on the Paterson River.
37. The Court accepts Miss Rohr’s evidence that the ecosystems of Dunns Creek and Blow Fly Creek may have been disturbed and that silt washing downstream may continue to have an adverse effect upon such water system.
38. The council seeks the removal of Dams C and F and the Court concludes that Dams C and F should be removed. The Court is mindful that the respondent is capable of the removal of such dams walls within a matter of days using his own equipment. The removal of Dam C and Dam F will not cause any appreciable hardship to the respondent. If the respondent wishes to re-instate Dam C and Dam F he will be at liberty to make a development application to the council pursuant to cl 29 of the Model Provisions.
39. The council does not urge that any orders should be made in respect to Dams A, B, D and E other than orders that will satisfy the council of the structural integrity of such dams. The Court accepts the evidence that there is no serious concern for the structural integrity of the dam walls as they exist but that council in the public interest is entitled to be assured of the integrity of such walls.
Orders
40. The applicant has supplied to the Court ‘Alternative Short Minutes of Order’. The Court directs the applicant to submit revised draft orders in view of the findings above. Such orders should extend the date for completion of the necessary works as the Court considers that 28 days is unnecessarily short.
41. The Court orders that the costs be reserved and grants leave to the parties to approach the Registrar within 5 days to obtain a date for the purpose of final orders and costs.
42. The Court orders that exhibits be returned.
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