Ringtank v Ballina Shire Council

[2007] NSWLEC 580

Land and Environment Court

of New South Wales

CITATION:

Ringtank v Ballina Shire Council and others [2007] NSWLEC 580

PARTIES:

Applicant:
Ringtank Pty Ltd

First Respondent:
Ballina Shire Council

Second Respondent:
Director General of Planning

FILE NUMBER(S):

10521, 10522, 10523 and 10524 of 2007

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- Impact on threatened species

DATES OF HEARING:

11/09/2007, 12/09/2007, 10/10/2007 and 15/11/2007

 
DATE OF JUDGMENT: 

23 November 2007

LEGAL REPRESENTATIVES:

Applicant:
Mr T Robertson, SC instructed by Ms K Gerathy, solicitor of HWL

First Respondent:
Ms C Huegill, solicitor

Second respondent:
Mr P Clay instructed by Ms.C McMillan, solicitor, Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

23 November 2007

10521-4 of 2007 Ringtank Pty Ltd v Ballina Shire Council (First Respondent) Director General of Planning (Second Respondent)

JUDGMENT

1 Senior Commissioner: These are four appeals against the deemed refusal by the Ballina Shire Council (the council) of four staged development applications in respect of

· Lot 4 DP 521415 and lot 64 DP 755626, Empire Vale Road, Empire Vale (Appeal No 10521 of 2007);

· Lot 113 DP 755626, Carrs Lane, Keith Hall (Appeal No 10522 of 2007);

· Lot 91 DP 755626, Reedy Creek Road, Empire Vale (Appeal No 10523 of 2007); and

· Lots 89 and 90 DP 755626, Empire Vale Road, Empire Vale (Appeal No 10524 of 2007).

2 The applications are for Stage 1 of developing the four sites for a dwelling house. They include the designation of an area for the house and shed, construction of vehicular access, revegetation and closure of the 4WD beach access track to the public.

The sites

3 The four sites are situated on the coastal strip between Patches Beach and South Ballina. To the east is Crown land and, beyond it, the beach, while to the west is agricultural land. A line of hind dunes running parallel to the coast delineates the coastal dunal land on the east portion of the site from the flood-prone agricultural land on the western portion. A four-wheel drive track through the site connects Empire Vale Road with the beach. The surrounding area is sparsely settled and typical of a rural coastal location.

4 Lot 4 and lot 64 are vacant and have an area of 49 ha. The land has a 776m frontage to Beswicks Beach. The majority of the land is vegetated and within zone 7(f) Environmental Protection (Coastal Lands). The rest (6 ha of agricultural land) is zoned 1(a2) Rural (Coastal Lands Agriculture).

5 Lot 113 is vacant and has an area of 41 ha. It has an irregular configuration, with a 604m frontage to Beswicks Beach. It has an area of 13 ha vegetated lands, all of which is zoned 7(f), and 28 ha of agricultural land, zoned 1(a2).

6 Lot 91 is vacant and has an area of 49 ha. The land has a 1,387m frontage to Beswicks Beach. It contains native vegetation and is entirely within zone 7(f).

7 Lot 89 and lot 90 are vacant and have a combined area of 44 ha. The land has a 1,144m frontage to Beswicks Beach. The majority of the land contains native vegetation, all of which is in zone 7(f).

The proposal and its history

8 The applicant proposes to obtain Stage 1 approval for designated dwelling and shed sites, construction of vehicular access, construction of a fence, removal of rubbish, revegetation of degraded areas, clearing for bushfire protection, closure of the four-wheel drive beach access track, and provision of power and telephone lines to the dwelling sites.

9 The applicant lodged the application in April 2006. Following notification, the council referred it to several government departments, including the Department of Planning, the Department of Environment and Climate Change and the Department of Lands. The Director General of Planning (the Director General), whose concurrence is necessary for consent by the council (though not by the Court), refused concurrence in June 2007. Following this refusal, the council resolved to leave the defence of the appeal to the Director General. On 5 September 2007 the Chief Judge, Preston J, joined the Director General as Second Respondent.

Relevant planning controls and policies

10 The Environmental Planning and Assessment Act 1979 (the EPA Act), cl 79C of which sets out the considerations for assessing development applications.

11 The Threatened Species Act 1995 (the TS Act) provides for Threat Abatement Plans (TAPs). The relevant TAP to these proceedings is the TAP for Predation by the Red Fox.

12 The Ballina Local Environmental Plan 1987 (the LEP), under which lot 113 and lots 4 and 64 are zoned partly 7(f) and 1(a2) and lots 89 and 90 and lot 91 are zoned 7(f).

Matters in Contention

13 The only matter raised by the First Respondent, the council, was the Director General’s refusal to give his concurrence. The Second Respondent, the Director General, filed a Statement of Contentions containing three matters, with numerous secondary matters. During the hearing the parties negotiated and reached agreement that the proposals should be approved subject to conditions. The relatively small amount of disagreement that remained related to conditions. The Court’s decision relates therefore only to the conditions of consent.

The objectors’ evidence

14 As mentioned above, a four-wheel drive track traverses lot 4, giving access to the beach. There is a narrow Crown corridor between lot 4 and lots 89/90, which is, however, not a track. Most of the objectors to the proposals were concerned with the proposed closure of this track. The Court heard the following objectors during the view of the site:

15 Mr Lewis Cannon, who lives at 156 Empire Vale Road, said that he was a user of the track and wanted it kept for the sake of the many people who love the natural beauty of this area. Mr James Gould of 398 River Drive and Mr Richard Spencer of 287 Empire Vale Road endorsed Mr Cannon’s opinion. Mr Denis Magnay, who lives at 148 Tamar Street, Ballina and is the secretary of the Southern Beaches Users’ Club, supported this view by pointing out that the proposals tie up 4km of beachfront without giving access to the beach.

16 Mr Michael O’Connor spoke on behalf of Ballina Marine Discovery and Resource Centre, an organisation that introduces school children (principally from Ballina High School, but also from other schools in the region) to marine science. Vehicular access to the beach is necessary for running this project,

17 Ms Joanne Boyton, who lives at Keith Hall near the subject site and supports the proposal, wants the asbestos on lot 113 removed from the site. The council has accepted expert advice that it is safe to leave the asbestos on the site.

18 As concerns the proposed closure of the four-wheel track, I note that it passes through private land. Consequently the landowner could close it, whether the development is approved or not. If I were persuaded that keeping the track open to the public is desirable, I would have no power to require it since a condition to that effect would not relate to the development. Moreover, the parties and their experts agree that the environmental impacts of the track on native flora and fauna are adverse. It appears therefore that the environmental benefits of closing the track outweigh the inconvenience caused to the objectors.

19 I note that there is a Crown corridor between lot 4 and lots 89/90. This corridor could be utilised for pedestrian and emergency access. The emergency access could include Ballina Marine Discovery and Resource Centre, if that Centre were successful in negotiating such an access with the Department of Lands. Other than for the Centre and pedestrian/emergency access, a prohibition on four-wheel drive access to the beach is highly desirable.

The experts

20 The Court heard the evidence of Mr David Rohweder, an ecologist retained by the applicant; Mr Ian Gaskell, the council’s environmental scientist; and Ms Lisa Wellman, the environmental pest management officer of the National Parks Service, who gave evidence in the Director General’s case.

Dispute about draft condition 8

21 Draft condition 8 imposes several restrictions on the land, with an emphasis on the control of dogs. The reason for the restrictions is to minimise the likelihood of a dwelling (and therefore domestic animals) interfering with the Threat Abatement Plan for Predation by the Red Fox that takes place around the site between July and December each year. The council’s version of the draft condition requires that the restrictions in Condition 8 be placed on the title of the relevant lot under s88E of the Conveyancing Act 1919. The applicant accepts this but wishes to add a sentence to the effect that: the memorandum of restriction on public positive covenant under which the restriction is imposed must provide that the restriction in respect of dog control during a fox baiting program will cease to operated in the event that the fox baiting programs are terminated. Mr Gaskell, for the council, opposed the addition requested by the applicant, on the basis that the program might cease for a while and then start again.

22 In my opinion, there is no need for the addition sought by the applicant. If, at some time in the future, there is a decision to discontinue the baiting program without the likelihood of starting it again, the applicant can apply to the council to have the restrictions removed from the conditions of consent. The council’s agreement to removing the restriction from the conditions would have to include, for the sake of consistency, its agreement to remove any reference to the restriction on the title.

23 The council’s version of draft condition 8.3.1 requires that a dog enclosure be constructed “in reasonable proximity of the dwelling”. The Director General’s version requires that the dog enclosure be “attached to the dwelling house”. The applicant wants no restriction on the location of the dog enclosure. The council’s version offers a compromise between the other two parties and the Court adopts that version.

24 The council’s version of draft Condition 8.3.2 requires a self-locking gate to the dog enclosure. The Director General’s version requires a roof over the enclosure. The applicant accepts the council’s version. I find it hard to understand why a dog enclosure needs to be roofed. The Court adopts the council’s version.

25 The council’s version of draft Condition 8.3.5 requires that dogs outside the fenced enclosure must be under leash at all times. The Director General’s version requires that the dog under leash also be under the control of an adult at all times. The applicant accepts the leash but objects to the requirement of an adult on the grounds that a child may want to take the family dog for a walk. I accept the applicant’s position that the Director General’s requirement is too onerous and difficult, if not impossible, to police. It is not good policy to impose conditions that are unlikely to be complied with. The Court adopts the council’s version.

Draft Condition 13

26 The most significant dispute between the parties is in regard to draft Condition 13. The background to the dispute is as follows. Condition 13 requires the applicant to carry out compensatory fox baiting on its own land if two baiting stations on public land near the beach are unable to operate as a result of dwellings being built nearby. The baiting stations would be unable to operate if the distance between a dwelling and the baiting station were required to be at least 500m. The existing regulations require 500m separation; however, the appropriate regulatory authority may vary this distance. The parties agree that such a variation is probable. They agree that the required separation is likely to be reduced from 500m to 150m, in which case the baiting stations on public land can continue to operate undisturbed. The only difference between the parties is that they assign different levels of probability to the reduction in distance, with the applicant believing that the reduction is almost certain, while the respondents believe that it is highly likely. Therefore the parties agree that Condition 13 is unlikely to come into force, though the applicant believes it to be more unlikely than do the respondents.

27 The dispute is specifically in respect of draft Condition 13.4, which requires the applicant to undertake continuous baiting on its own land for the period July to December. The applicant accepts this responsibility so long as there are foxes around, but does not wish to be burdened with the expense of baiting when there are no signs of fox activity. For this reason the applicant wants a reference in the condition to the Environmental Management Plan, specifically to Protocol 6 in Table 2C, ie

While it is intended to bait continuously for the period July to December, advice will be sought from an appropriate regulatory authority in cases where there are no confirmed bait takes by foxes (or dogs) for a consecutive period of two months up to the end of October and where there are no signs of fox activity (ie scats or foot prints) around the bait station.

28 According to Mr Rohweder, the records indicate that whenever there was no fox activity for two months, there was no activity for the whole of the baiting season. Ms Wellman and Mr Gaskell did not agree with this reading of the records. They want the applicant to carry out the baiting activity for the whole of the baiting season regardless of signs of fox activity.

29 It seems to me that in reality the parties are much closer to each other than the heated argument during the hearing would suggest. The applicant wants a reference in the condition to the possibility that, at an appropriate time (ie when it has not seen signs of foxes for a long time), it may apply to the appropriate regulatory authority to be allowed to discontinue baiting. It seems to me that the applicant may do this whether or not there is reference to the possibility in the condition. The respondents’ fears are also unfounded, since the appropriate regulatory authority is unlikely to allow the baiting to be discontinued if it is not satisfied that continued baiting would be to no purpose.

30 Given the strong feelings about this minor addition to draft Condition 13.4, a compromise that might satisfy both parties would be the insertion of a sentence to the effect that

The applicant may seek permission from the appropriate regulatory authority to cease the baiting program after the end of October if it considers that continued baiting has no purpose because there has not been fox activity for a considerable time.

If the applicant believes that the insertion of this sentence (or a sentence to the same effect) provides some assurance towards unnecessary baiting, the Court agrees to the inclusion of the sentence in Condition 14.

Draft Condition 14

31 The council’s version of draft Condition 14 requires the applicant to amend the Environmental Management Plan, before the commencement of any works, by including the following statement:

The owner is to provide written confirmation that he or she acknowledges and accepts the undertakings of the Environmental Management Plan and that he or she is fully cognisant of the associated costs. The owner will ensure any subsequent owner is also made aware of the associated costs.

32 I do not think that this is in a form that can be imposed. First, if the council wants an acknowledgement from the owner that the implementation of the Environmental Management Plan is expensive, then it should impose a condition that requires such an acknowledgement to accompany the lodgement of the Stage 2 application for the construction of the dwellings. It is only at Stage 2 that residential use of the site can begin.

33 Second, while I understand the council’s wish to ensure future owners are aware of the costs of the Environmental Management Plan, I do not think that this is a condition that fairly relates to the development. It requires the present owner to say something to a future owner, and then the future owner to say it to subsequent future owners. How could such a condition be policed? Given that the restrictions on the land will be registered on the title, there is a reasonable chance that future owners will inform themselves of the cost of the restrictions irrespective of a condition of consent, of which, at the time of a future sale, neither buyer, nor seller, nor conveyancer may be aware.

Conclusions

34 The greater part of this dispute was resolved by negotiations between the parties. The few minor remaining disputes relate to conditions. They have now been resolved in this judgment. The appeals are therefore upheld subject to the conditions some of which were agreed and some determined by the Court.

____________________
Dr John Roseth
Senior Commissioner