S J Connelly CPP Pty Limited v Byron Bay Council - [2010] NSWLEC 1182

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: S J Connelly CPP Pty Limited v Byron Bay Council [2010] NSWLEC 1182

PARTIES:
APPLICANT
S J Connelly CPP Pty Limited
RESPONDENT
Byron Bay Council

FILE NUMBER(S): 10710 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Staged subdivision application; concept plan; sewerage provision arrangements; ridgeline development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Coastal Protection Act 1979
State Environmental Planning Policy No. 1
State Environmental Planning Policy No. 44
State Environmental Planning Policy No 71 — Coastal Protection
State Environmental Planning Policy No. 55— Remediation of Land
State Environmental Planning Policy – Infrastructure
North Coast Regional Environment Plan
Byron Local Environmental Plan 1988
Byron Development Control Plan 2002
Byron Development Control Plan No. 11

DATES OF HEARING: 8, 9, 10, 11, 12 February 2010, 28, 29, 30 April 2010, 18 and 21 May 2010

DATE OF JUDGMENT:
16 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr P. Tomasetti, (SC)
SOLICITOR
McCartney Young Lawyers
RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

16 July 2010

10710 of 2009 S J Connelly CPP Pty Limited v Byron Bay Council

JUDGMENT
1 Introduction

1 This appeal was lodged against council’s refusal of a staged development application for approximately 240 Torrens Title lots and other ancillary areas on a 67 ha site known as the “Tallowood Ridge Estate Mullumbimby”, situated to the west of Mullumbimby. This development approach requires initial approval of a “concept plan” to guide the overall development of the land, following which the various stages may be approved. The 1^st stage subdivision application in this matter proposes 31 residential lots. There are a further 6 stages proposed and the overall development is shown on the plan – Attachment A.

2 The site has been subject to comprehensive environmental assessments resulting in a substantial part of the land being designated and zoned for residential purposes. The development of this land will extend the existing residential neighbourhood known as “Chincogan Views Estate”, to the west of Tuckeroo Ave.

3 Despite the extensive planning investigations, consideration of the proposal initially lodged with the Court in the appeal raised a number of contentions which are summarised as follows:

4 During the appeal process, the applicant provided more details on these issues and this allowed for further conferencing by the parties experts. This resulted in agreements to many of the issues. At the close of the case, two principal outstanding issues remained. They concern firstly whether satisfactory arrangements have been for sewerage provision arrangements pursuant to the requirements of clause 45 of the Byron LEP.

5 However the Minister has subsequently issued the necessary 10(5) Licence to satisfy this requirement and council acknowledges the cl 45 requirement is now satisfied.

6 The second outstanding issue concerns ridgeline development relative to the development proposed along the southern boundary of the property. This issue was raised in the context of the DCP 11 provisions and the respective experts in response to the stated contentions considered the relative merits, as particularised in terms of the DCP provisions. However in final submissions Mr Seton referred to the provisions of cl 31 of BLEP with the submission that as the proposal does not satisfy the requirements of this clause, it must therefore be refused.

7 Mr Tomasetti made comprehensive submissions in reply that the aforementioned submission is legally and factually flawed. He says that as the provisions of cl 31 was not identified in the SoFC, it is not open to the respondent to raise this as a contention in final submissions. This reply raises a number of associated aspects, such as whether the southern unmade road reserve is actually a ridgeline making cl 31 is applicable. Consequently, I accept that the experts have not specifically addressed this clause and accordingly I have dealt with the evidence presented on the merits of this and related issues as listed in the SoFC. I then deal with the submission in reply separately.

2. The site

8 The proposed subdivision is to be carried out within 3 allotments, which comprise a parcel having a total area of approximately 63.71 ha located between Tuckeroo Avenue and Clays Road on the western side of Mullumbimby and described as follows:

9 Lot 2 DP 785041 is made up of two parts that are separated by an unformed road reserve. The allotment has a total area of 63.44 hectares. The southern boundary of the allotment follows a ridgeline that falls to the north to various intermittent streams within the site. Sloping land is found over much of the southern and western areas of the allotment, while flatter and lower lying land is found within the northern and eastern areas of the allotment. Lot 170 DP 720414 is a small parcel of 2011 square metres located between the unformed road reserve adjacent to the southern boundary of the site. Lot 171 OP 720414 is also a small parcel of 1244 square metres located in the south-eastern corner of the site.

10 Roughly 75% of the site has been previously cleared for agricultural uses, being predominantly cattle grazing. Much of the grazing land that is within the 1(a) General Rural Zone is identified as Regionally Significant Farmland within mapping prepared under the Northern Rivers Farmland Protection Project. The remainder contains vegetation stands and scattered trees. Large vegetation stands are found within the western and southern slopes of the site. These vegetation stands are identified as bush fire hazards A small area of the allotment is mapped as containing Class 5 Potential Acid Sulfate Soils. Low lying areas within the eastern half of the site are mapped as flood liable land.

11 Access to Stage 1 of the development is via an extension of existing Tuckeroo Avenue with a road reserve width of 20m and carriageway width of 11 m. The applicant states that this road will later be the collector street for all future lots in the locality.

12 The surrounding locality comprises a mix of land uses. To the east lies the Brunswick River, which drains the intermittent streams within site, Residential allotments containing houses occupy the land on either side of the Brunswick River, including land immediately adjoining the site within Tuckeroo Avenue and Hottentot Court.

13 Small lifestyle holdings adjoin the site to the south with access from Melaleuca and Brushbox Drives. Some of these properties appear to have informal access from the rear unformed road reserve. Small and large holdings also adjoin to the north and north-west. Some of these continue to be used for agriculture.

3 The proposal

14 This proposal consists of a staged development application under s 83C of the EPA & Act 1979 on the following basis:

4 Planning controls

15 The following planning controls apply:

Environmental Planning and Assessment Act

Environmental Planning and Assessment Regulation

Coastal Protection Act 1

State Environmental Planning Policy No.

State Environmental Planning Policy No

Coastal Protection

State Environmental Planning Policy No. 55— Remediation of Land

State Environmental Planning Policy – Infrastructure.

North Coast Regional Environment Plan

Byron Local Environmental Plan

Byron Development Control Plan

Byron Development Control Plan No. 11 — Mullumbimby

Other environmental and strategic assessment documents were referred to .

5 The evidence

16 Detailed evidence was presented by:

5.1 Planning background – Local Controls (BLEP 1988, DCP 2002, DCP No 11)

17 It is apparent from the evidence that there has been a considerable amount of site investigations, environmental and strategic assessments undertaken for this site and the surrounding land. Those investigations have resulted in a significant portion of the land being zoned Residential 2A under the BLEP 1988, together with the remaining portion being in the 1A General Rural Zone. Consequently, subdivision of land in the residential zone is permissible with consent. The associated DCP’s contain planning strategies and relevant design details for various types of development and are to be taken into consideration.

18 However in the subject matter, the site is subject to the overriding provisions of SEPP 71 – Coastal Protection because it is within a ‘sensitive coastal location’ due to it being within 100m of The Cape Byron Marine Park (which extends into the Brunswick River).

19 In this case however, the application has been made pursuant to Division 2A – Special procedures concerning staged development applications – of the EP & A Act 1979 and it is also classified as “integrated development”.

This LEP contains aims, objectives and guiding principles in cl 2. Of particular relevance, cl 2A provides:

2A

Implementation of aim, objectives and guiding principles

(1) The Council shall grant consent to the carrying out of development on land to which this plan applies only where the Council is of the opinion that the carrying out of the development is consistent with the aim, objectives and guiding principles of this plan.

(2) Before determining a development application, the council shall have regard to the information, guidelines and recommendations in the following strategies, policies and studies adopted by the council:

(a) State of the Environment Report,

(b) Byron Flora and Fauna Study,

(c) Byron Biodiversity Conservation Strategy,

(d) Byron Rural Settlement Strategy,

(e) Small Towns and Villages Settlement Strategies,

(f) Coastline Management Plan.

21 The aims, objectives and guiding principles are found in cl 2 as follows:

2 Aim, objectives and guiding principles

(1)

Aim

The aim of this plan is to promote sustainable development in Byron by furthering the objects of the

Environmental Planning and Assessment Act 1979

, particularly in regard to:

(a) the application to proposed development of guiding principles for the management, development and conservation of natural and human made resources (including natural areas, forests, coastal areas, water, agricultural land, extractive resources, towns, villages and cultural amenities) for the purpose of promoting the social and economic welfare of the community, protecting ecological and cultural heritage and achieving a better environment,

(b) the promotion and coordination of the orderly and economic use and development of land,

(c) the provision and coordination of community services and facilities,

(d) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities and their habitats, and

(e) the provision of increased opportunity for public involvement and participation in environmental planning and assessment.

(2)

Objectives

The objectives of this plan are:

(a) to enhance individual and community (social and economic) well-being by following a path of economic development that safeguards the welfare of future generations,

(b) to provide for equity within and between generations, and

(c) to protect biodiversity, and re-establish and enhance essential ecological processes and life support systems.

(3)

Guiding principles

The objectives can be achieved through the implementation of the following guiding principles:

(a) The precautionary principle. The precautionary principle means that where there are threats of serious or irreversible damage to the community’s ecological, social or economic systems, a lack of complete scientific evidence should not be used as a reason for postponing measures to prevent environmental degradation. In some circumstances this will mean actions will need to be taken to prevent damage even when it is not certain that damage will occur.

(b) The principle of intergenerational equity. This principle means that the present generation must ensure that the health, integrity, ecological diversity, and productivity of the environment is at least maintained or preferably enhanced for the benefit of future generations.

(c) The principle of conserving biological diversity and ecological integrity. This principle aims to protect, restore and conserve the native biological diversity and enhance or repair ecological processes and systems.

(d) The principle of improving the valuation and pricing of social and ecological resources. This principle means that the users of goods and services should pay prices based on the full life cycle costs (including the use of natural resources at their replacement value, the ultimate disposal of any wastes and the repair of any consequent damage).

(e) The principle of eliminating or reducing to harmless levels any discharge into the air, water or land of substances or other effects arising from human activities that are likely to cause harm to the environment.

(f) The principle of encouraging a strong, growing and diversified economy that promotes local self reliance, and recognises and strengthens the local community and its social capital in ways that safeguard the quality of life of future generations.

(g) The principle of providing credible information in open and accountable processes to encourage and assist the effective participation of local communities in decision making.

22 Clause 9 of the BLEP is also relevant and it provides:

9 Zone objectives and development control table

(1) The objectives of each zone are set out in the table to his clause under the heading “Objectives of Zone” appearing in the matter relating to the zone.

(2) …

(3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

23 As part of the land is zoned Residential 2(a), the following objectives apply:

(a) to make provision for suitable lands, both in existing urban areas and new release areas, to be used for the purposes of housing and associated neighbourhood facilities of high amenity and accessibility.

(b) to encourage a range of housing types in appropriate locations.

(c) to enable development other than residential purposes only if it is compatible with character of the living area and has a domestic scale and character; and

(d) to control by means of a development control plan the location, form, character and density of permissible development.

24 Also relevant are the objectives for the 1(a) General Rural Zone, which includes:

(a) to encourage and permit a range of uses creating a pattern of settlement at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron.

(b) to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character…

25 Clause 24 details the special provisions that apply to the development of flood liable land. It requires that prior to granting consent, the council must be satisfied that:

(i) the development would not restrict the flow characteristics of flood waters’

(ii) the development would not increase the level of flooding on other land in the vicinity…

26 Clause 31 states:

31 Development on ridgetops

The council shall not consent to the erection of a building or the carrying out of other development on or near any ridgeline on land to which this plan applies unless no alternative location for the building or other development is available, in which case the following objectives to lessen the impact are to be considered before consent is granted:

(a) whether there will be adequate existing or proposed landscaping, trees or other vegetation which assist or are likely to assist in mitigating visual impact, and

(b) whether the proposed building design elements, materials of construction and proposed colours will mitigate potential adverse visual impact, including the reflectivity of materials to be used.

A number of DCPs have been adopted and are applicable to development in this designated ‘release area’. They have particular relevance for the design of the individual stages of the subdivisions. Part B of DCP 2002 contains the detailed controls for subdivisions based on the following objectives:

To promote subdivision development which is of a high design standard and which minimises impact on the environment.

To provide for a variety of housing needs reflecting the growing diversity of household types, incomes and lifestyles.

To encourage the use of innovative design and engineering principles which enhance the physical environment and the social fabric.

To optimise the provision of infrastructure services in the most efficient and effective manner.

To ensure the continued supply of agriculturally viable land.

28 DCP No 11 – Mullumbimby became effective from 11/12/90 and applies the land shown on the designated maps. The main purpose of this DCP is to give detailed expression to Council’s Planning and Development policies and objectives as set out in the Byron LEP 1988. There are a number of specific objectives and of particular relevance, section 4 deals with Development Guidelines – New Urban Areas.

29 The subject site is within Precinct 5 – Area west of Azalea Street. It is described as:

The undulating topography and north – facing aspects will lend themselves to curvilinear layouts and innovative cost effective subdivision practice as described in 4.1. The scale of streetscape and length of visual runs will contrast greatly with the existing town grid-iron pattern.

Subdivision design is to be based on roads as small in section (both road reserve and road seal) as necessary to serve the traffic function of the road with minor access roads designed specifically for low vehicle speed (20 – 30 kph maximum) to provide a public street environment safe for pedestrians.

The prominent east/west ridgelin(e) is to be avoided by house sites and roads and open space corridors should avoid cutting across the landform.

The open-space system focuses on the river corridor and the extension along the fully forming the northern boundary of this area…

30 Section 6.2 deals with road location criteria. It states:

Roads are to be located with a minimum impact and disturbance to the environment and landscape. Significant individual trees and stands of vegetation should be preserved where possible.

Roads are to generally follow contours and ridges and avoid steep sections and cuts.

Long straight sections of road are to be avoided.

31 DCP 11 contains a number of maps, which includes a development control plan (Attachment B) that indicates the general structure for future development, the areas of constraints, the desired road and movement and servicing systems. However the scale and definition of this plan makes accurate references somewhat difficult.

5.2 SEPP 71 – Coastal Protection

32 As noted, this is the prevailing control because the eastern part of the property is located within the sensitive coastal zone. Clause 8 lists a number of matters that are to be taken into account by a consent authority when determining any development application.

33 The granting of consents is restricted by a number of controls including the provisions of clause 18 as follows:

18 Master plan required before certain consents may be granted.

(1) A consent authority must not grant consent for:

(a) subdivision of land within a residential zone, or a rural zone, if part or all of the land is in a sensitive coastal location, or…

unless

(d) the Minister has adopted a master plan for the land , including any adjoining or neighbouring land in the same ownership, as referred to in paragraph (b) (ii), or ..

34 Notwithstanding that in this case no master plan was prepared, or required, clause 19 of the BLEP provides:

19 Consent authority to consider master plan

A consent authority must not determine a development application for development on land to which this policy applies unless the consent authority has taken into consideration the provisions of a master plan adopted under this plan.

35 Regarding master plans, the EP & Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 enables the master plan requirement to be construed as requiring a development control plan. Accordingly an appropriate master plan would the satisfy the requirements of the cl 9 (d) BLEP zone objectives.

36 The requirements for the preparation of master plans are then set out in cl 20:

20 Preparation of master plans

(2) A draft master plan is to illustrate and demonstrate, where relevant, proposals for the following:

(a) design principles drawn from an analysis of the site and its context,

(b) desired future locality character,

(c) the location of any development, considering the natural features of the site, including coastal processes and coastal hazards,

(d) the scale of any development and its integration with the existing landscape,

(e) phasing of development,

(f) public access to and along the coastal foreshore,

(g) pedestrian, cycle and road access and circulation networks,

(h) subdivision pattern,

(i) infrastructure provision,

(j) building envelopes and built form controls,

(k) heritage conservation,

(l) remediation of the site,

(m) provision of public facilities and services,

(n) provision of open space, its function and landscaping,

(o) conservation of water quality and use,

(p) conservation of animals (within the meaning of the

Threatened Species Conservation Act 1995

) and plants (within the meaning of that Act), and their habitats,

(q) conservation of fish (within the meaning of Part 7A of the

Fisheries Management Act 1994

) and marine vegetation (within the meaning of that Part), and their habitats.

37 Conveniently, SEPP 71 defines a “master plan” as:

“a document consisting of written information, maps and diagrams that outlines proposals for development of the land to which the master plan applies”.

5.3

EP &A Act 1979

38 Insofar as the application has been made as a staged application, the provisions of Division 2A (Special procedures concerning staged development applications) of the EP&A Act apply. Section 83 provides:

83B Staged development applications

(1) For the purpose of this Act, a “staged development application” is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications

.

The application may

set out detailed proposals for the first stage of development.

(2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.

(3) If the consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:

(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

(4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of the subsection (3)

39 Section 83 C deals with staged development applications as an alternative to the DCP required by environmental planning instruments. It states:

(2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land.

(3) Any such development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.

40 Also of relevance, section 83D provides:

(2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.

41 As consequence of this ‘staged development application’ for the subdivision of this land, the applicant has prepared a concept plan(CP) to address the requirements of cl 83C(2) and (3). This CP addresses the matters listed in cl 20 of SEPP 71, and is an approach I consider satisfactory.

5.4 The Tallowood Ridge Estate Concept Proposal Report

42 After a considerable amount of assessment and examination, the planning experts agreed on the format of the CP as tendered in Exhibit Z. The format closely follows the items (a) – (q) listed in cl 20(2) of SEPP 71, together with an additional Section 18 – Drainage Strategy that is relevant in this case. I understand the planning experts are satisfied with its general form but there are several areas of disagreement with the detailed contents of the CP.

43 It appears to me from the evidence of the respective experts that the resultant detailed contents for most of the contentions initially identified has been agreed as generally satisfactory, except the provisions for development along the higher, southern boundary, adjacent to the existing rural/residential development, which fronts Melaleuca and Brushbox Drive. I deal with this issue later.

44 Prior to dealing with this issue, I consider it appropriate to summarise my consideration of the detailed contents in the CP relative to the original contentions, as follows.

45 Sewerage services; I am satisfied that satisfactory arrangements pursuant to cl 45 of BLEP have been made, in accordance with the 10(5) Licence issued by the Minister on 28 May 2010.

46 Remediation of land; Following consideration of the detailed site investigation details, the parties agree this matter can be covered by conditions of consent. I accept this approach.

; The main issue in this regard concerned the potential impacts on the water quality of the coastal waterbodies, in respect of causing potential risks to the marine environment. But I am now satisfied that this risk should be satisfactorily managed by compliance with the outline provisions of the CP as summarised in:

Section 16 – Conservation of Water Quality and Use

The quality of the stormwater draining from the site into the Brunswick River/Bryon Marine Park is currently very poor due to use of the site as grazing paddock for cattle.

The concept proposal is to improve the quality of water exiting the site to a standard that exceeds the requirements of council. Gross pollutant traps and bio retention basins will be provided.

During construction careful controls will be in place to ensure that stormwater run-off quality is not adversely affected by sediments and entrained particulate matter.

Once completed, the existing drainage lines and the water courses will be restored with a new riparian zone which will be heavily planted.

48 North Coast REP; The concern arising from this REP related to the proximity of the new residential development to the neighbouring farmland, particularly the impact of effluent disposal. But this has now been addressed with cl 45 BLEP licence. Furthermore, the planners agree that the updated CP provides adequate buffers to the adjoining farmland, subject to the imposition of agreed conditions of consent.

49 Byron DCP 2002; A number of issues arising from this development control plan were identified and include the retention of vegetation so as to protect the visual amenity of the area. This particularly relates to the southern boundary ‘ridgeline’ development, which I deal with separately.

50 Other issues concerned potential ecological impacts on endangered flora and fauna species on both the subject and adjoining land. Insofar as there was a significant contest between Mr Robinson and Mr Parker about the extent of initial site investigations, I consider that this has been adequately resolved within the context of the requirements for a ‘concept plan’. The main purpose of this CP is to illustrate and demonstrate how the endangered flora and fauna issues are to be dealt with.

51 The CP, which was finalised after the ecologist’s initial evidence recognises the earlier strategic environmental investigations, including the areas of high conservation value. Consequently the resultant CP summary is:

4.3 The Concept Proposal has a number of aims and objectives

First, the proposal is to re-vegetate the riparian areas on the site to establish well vegetated riparian corridors to reverse evident degradation of these areas through past uncontrolled grazing practices.

Secondly, the proposal is to provide steep slopes with vegetation cover to protect unstable land from slip and erosion.

Thirdly, the proposal is to protect existing stands of vegetation from unnecessary clearing. In some cases, vegetation

will

be cleared to make way for housing development. The land proposed for development is zoned "Residential 2(a)" under the Byron Shire LEP and the objectives of the 2(a) zone are:

(a) to make provision for certain suitable lands, both in existing urban areas and new release areas, to be used for the purposes of housing and associated neighbourhood facilities of high amenity and accessibility;

(b) to encourage a range of housing

types

in appropriate locations;

(c) to enable development for purposes other than residential purposes only if it is compatible with the character of the living area and has a domestic scale and character; and

(d) to control by means of a development control plan the location, form, character and density of permissible development.

The requirements of the Threatened Species Act 1995 also have to be taken into account.

At this time, the Concept Proposal has done no more than identify the existing vegetation and all threatened species on the property and proposed development of stage 1 only.

52 I note that whilst the final site investigations have not been completed for the entire site, nevertheless the Stage 1 has been fully surveyed and found to be acceptable subject to compliance with conditions of consent. In my assessment, the overall contents of the CP provide an adequate outline for the future development. Further detailed site investigations will be required for the assessment of future stages.

53 Importantly, I consider the introduction of a number of “super lots” introduced into the CP for the subsequent stages provides reasonable opportunities and safeguards for the protection of flora and fauna, within the existing residentially zoned land.

54 The “super lots” have effectively consolidated a number of the original (approx. 600 sq m) lots into larger lots where there is significant vegetation and other ecological constraints. Consequently, it is apparent that a dwelling could be erected on the super lot, based on the designated 12m x 15m building envelope, together with the retention of the vegetation, if it is significant. If however further detailed investigation confirms these lots are capable of further subdivision, this can be considered on its merits. Accordingly, I am satisfied the CP reasonably addresses this matter.

55 Byron DCP No 11 - Mullumbimby; The issues arising from this control concern the detailed subdivision design elements for this precinct, including the satisfactory provision of services, road alignments and cut/fill, and impact on landscape elements such as ridgelines. It also includes the non-provision of a neighbourhood shop/ community centre as shown within the DCP. But following consideration of the status of the proposed shop near Left Bank Road, the parties agree that conditions of consent can address this.

56 The other issue raised concerns the provision of flood free access from Clays Road and I deal with this in connection the flooding issue.

5.5 Flooding

57 As the site contains low – lying, flood – liable land, satisfaction is required to the following cl 24(3) of BLEP:

“The council shall not consent to … the carrying out of a work on flood liable land unless:

(a) the council is satisfied that:

(i) the development would not restrict the flow characteristics of flood waters;

(ii) the development would not increase the level of flooding on other land in the vicinity;…

58 The consideration of this matter involved further flood modelling being undertaken during the proceedings. This modelling took into consideration potential climate change impacts, the effect proposed site filling adjacent to the flood liable areas, utility of the playing fields area in Stage 3 and impacts of the roads crossing the floodplain.

59 Insofar as the initial flood modelling generally defined the floodplain and indicated that the stage 1 subdivision, which is at the lowest part of the site, represented a satisfactory level of flood risk, the Court considered further assurances were desirable in respect of any increased discharges from the upstream stages. This was to reasonably accurately define the overall extent of flooding risk and filling as primary constraints to future development, so that they could be incorporated into the CP. This is despite Mr Samuel’s opinion that any filling works for further stages beyond Stage 1 would be subject to subsequent flood modelling in accordance with the current controls at the time.

60 This concern about an overall drainage strategy arose partly because some of the interim concept plans introduced a Clays Road extention on an alignment adjacent to the sports fields to link the extension of Tuckeroo Avenue extension. As Tuckeroo will be elevated and the Clays Road extension not specifically identified in DCP 11, there was a concern that its elevated alignment could form an embankment adjacent to the playing fields and cause undesirable spread of floodwaters both within the site and externally along Clays Road.

61 As a result of the further modelling the engineers considered the potential public safety and risks. Accordingly they agreed that the better solution is for the ‘sports field’ access road to be at natural grade and incorporate safety measures and controls to prevent through traffic in periods of inundation. In this regard, they estimate the flood inundation frequency at grade is in the order of 1:8 year ARI. The safety measures identified can be incorporated into the conditions of consent.

62 Consequently the CP includes a detailed Drainage Strategy in Section 18, which is agreed to by the engineers. It includes the following summary:

Having regard to these characteristics, there are 2 types of "storm events" that need to be considered as part of the drainage strategy:

1. The 1% storm event over the Brunswick River catchment area that will cause flooding along the Brunswick River and its floodplain. The flood water will initially flow back up the drainage channel from the north east of the site and will cover some of the low-lying rural and open space portions of the site. Towards the peak of the flood, the Brunswick River will break its banks inundating the site up to the "1% flood line" as shown in

Plan 9

.2.

2. Local storm events occurring within the catchment of the site. Based upon the results of computer modelling and calculations undertaken by LandPartners, the runoff from local storm events will behave and be managed in the following way:

(a) stormwater flows will remain within the drainage channels on the development site and be conveyed to the Brunswick River by the east-west main drainage line; and

(b) stormwater run off flows during storm events up to and including the 1% AEP local event will be detained in the stormwater detention basins so that the post-development run off flows will not exceed the pre-development run off flows

(see Plan 10.2).

Having regard to the detailed studies undertaken by Land Partners and Paterson Consultants of the above storm events, it is the assessment of Paterson Consultants Pty Ltd that it is predominantly the 1% flood event within the Brunswick River basin that creates flooding issues for this development site.

The potential flooding of the development site by Brunswick River flooding has been modelled by Paterson Consultants. Flood modelling has been completed for:

the 1% flood event; and
the 1% year flood plus 20% additional rainfall (being an allowance for increased rainfall consistent with predictions about the anticipated effect of climate change).

Flood modelling was undertaken using RMA-2 two-dimensional approach and followed earlier work using the Brunswick River Flood Study (1986) flood models. In the absence of historical flood levels, The RMA-2 model was applied against the known data and the earlier Brunswick Flood Study.

The flood modelling of climate change has been undertaken relying on the recommendations of IPCC reports, CSIRO reports and DECC guidelines. (In this Strategy, it is noted that the current modelling has adopted the 1% flood event plus 20% additional rainfall, being an allowance that is generally in accordance with these recommendations at the time of lodging the DA. The term "future 1% design event" is otherwise used in this Strategy to describe the assumptions that must be incorporated into modelling to take account of future recommendations that may be made by these authorities.)

The above modelling has been completed for:

Stage 1; and
portions of Stage 2 requiring filling; and
Whole development proposed under the Concept Proposals including the assessment of impacts of raising the level of the road adjoining and to the east of the sports fields area but excluding:

The flood modelling concluded that, within the tolerances of the modelling, none of the Stage 1, Stage 2 or the whole site development would cumulatively increase flood levels for the design 1% AEP flood plus a 20% increase in rainfall intensity.

63 Having considered this evidence, I am satisfied that the drainage strategy provides a reasonable outline for management of the flooding issue within the overall development, particularly as it defines the 1:100 flood level constraint. Furthermore, the more detailed study in respect of Stage 1 indicates that the proposed subdivision layout is satisfactory in terms of flooding risk. Consequently I rely on the engineer’s agreement that the development will not restrict floodwaters, nor cause flooding of other land. This outcome satisfies the requirements of cl 24(3)

5.6 Ridgeline development (Section 4.2 – DCP 11)

64 One of the contentious issues not agreed by the experts, concerns the proposed development adjacent to the southern boundary of the property, which adjoins an existing ‘unmade road’ reserve (reserve). This issue was identified in the SoFC in terms of non – compliances with the requirements of DCP 11 in respect of:

the provisions of s 4.2 of DCP 11, wherein the Precinct 5 description states that roads and residential allotments on the ridgeline should be avoided, and
the non – satisfaction of objective (j), which requires:

65 In dealing with the evidence on the merits of the proposed development adjacent to this ‘reserve’, reference is made to the schematic subdivision plan in the CP (Attachment C). This shows the location of the reserve and ‘shelter belt’, which I note is zoned Residential 2(a). The 1^st stage subdivision proposal in this vicinity is (Attachment D) and it shows how Lots 25 – 31 rely on the reserve for access, in accordance with designated cross section.

66 Mr Davidson was dissatisfied with the proposed development of this reserve area on several grounds and referred to a number of planning considerations in support of his opinion. In light of the minimal details concerning the definition and objectives of the shelter belt and related access corridors, which affect the future use of this reserve area, I have considered in detail the following expert evidence in order to assess the adequacy of the CP to guide the overall development of this land.

67 According to Mr Davidson, the provisions of the Development Guidelines - general plan in DCP 11, designates this reserve as “Shelter belt along ridge” and he says that:

68 Mr Davidson also says that in respect of the following objective (e) of DCP 11:

(e) to provide

and upgraded network of public open space based primarily on the river park system and integrated with the walkway/bikeway system to meet the needs of the expanding town;

69 Insofar as Mr Davidson says this reserve represents a ridgeline and the stage 1 subdivision proposes the construction of a 6m wide road and cul-de-sac for access to lots 25 – 31 and the provision a (1m + 6m) 7m wide, landscaped footpath on the southern side, he does not consider this is adequate to satisfy the “shelter belt” intentions because:

“that multiple rows of trees and shrubs should be used to create a buffer between the two land uses. I believe that the shelter belt should be set out within a space that is at least 20 metres in width to support four or more rows of trees and shrubs, strategically planted so as not to significantly reduce solar access to the residences on the southern side of the ridge. This would include shrubs near the southern boundary of the shelter belt and trees near the centre and northern side of the shelter belt with careful consideration given to their mature height”

70 Against this, Mr Connelly supports the proposed use and ‘shelter belt’ landscaping of the reserve based on the following factors:

The common meaning of the term "shelter belt";
The usual with of screen planting defined by the Council DCP;
The impractical character of a 20m wide forested corridor in the subject circumstances;
The past practices of Byron Shire Council in relation to the existing road reserve;
The impact a 20m wide forested corridor would have on the amenity of property owners to the south;
Protection of existing trees;
Aboriginal archaeological considerations;
The significant cut and fill required to implement an alternative layout (such as DA 5.1997.127.1); and
Amenity Aspects

71 In response to the proposal’s compliance with objective (j) of DCP 11, Mr Connelly says that:

72 However Mr Connelly says that from initial discussions with council planning officers, the usual width of screen planting as described in council DCP was between 2 – 3m. As the proposal is for 6m, it is therefore satisfactory. Furthermore, he says that:

To be effective, shelter belts need to include a row of tall trees. A key issue in relation to the provision of a 20 m wide forest corridor relates to maintenance and management over time. Large trees will require removal from time to time. It will be impractical to remove trees or manage the forested corridor for pest or bushfire type risks by gaining access only through the backyards of adjoining properties. Thus, any shelter belt in the subject locality must include provision for a vehicular access to allow for proper maintenance. The document "Planning for Bushfire Protection, Dec 2008" (PBP) requires a minimum width of 6m for fire truck access. Further, it requires that all roads are through roads. Dead end roads are not recommended, but if unavoidable, dead ends are not allowed to be more than 200 metres in length, incorporate a minimum 12 metres outer radius turning circle. The forested corridor proposed by Mr Davidson will be a "dead end" style at odds with the PBP and with insufficient room to allow the required turn around and with a length greater than 200m. It is for this reason that I prefer the 6m wide shelter belt with adjacent road to permit maintenance.

73 My assessment of this evidence is that the DCP controls are minimal in providing specific guidelines for the shelter belt definition and future use of this reserve area. Therefore, I think it important that the CP provide reasonable guidelines outlining development opportunities in this vicinity.

74 Whilst there is the ‘shelter belt’ designation on the DCP 11 plan, no substantive evidence was presented to the Court regarding the linkage of this section to other sections that connect to the town centre. On the contrary, it appears the main pedestrian/bikeway link is via the river corridor. This somewhat diminishes the claim that the proposed road access through the reserve should be significantly restricted. Although I accept the desirability of providing a connection from the river corridor to the reserve.

75 I consider that this claim is also diminished by the fact that some years ago, council sold part of the road reserve to the adjoining property owner. This adjacent to lots 30, 31 and is now proposed to be incorporated into the residential lots.

76 Nevertheless, there are other clues in DCP 11 that confirm Mr Davidson’s opinion that the proposed road construction in the reserve should be restricted, considering the following DCP guidelines:

The prominent east/west ridgelin(e) is to be avoided by house sites and roads and open space corridors should avoid cutting across the landform.
Roads are to generally follow contours and ridges and avoid steep sections and cuts.

77 In this regard, I do not accept the applicant’s submission that this necessarily allows roads atop any ridges. Instead, I consider the intent is to encourage the road alignments to follow the general vertical ridge alignment but at a lower level.

78 From this background evidence, I then note that the CP incorporates the following references to development along the southern boundary. As mentioned, I consider this an important element of the CP because the subsequent stages 3, 5 and 6 also have significant boundaries adjacent to the reserve and it is desirable planning objective to achieve a consistent outcome.

79 The specific CP references I consider relevant are:

“The prominent east/west ridgeline is to be avoided by house sites”.

ridgeline

the forest along the ridgeline

development on slopes approaching the ridgeline”

Shelter Belts

Plan 5.1.

Summary

80 My impression from this evidence is that southern unmade road reserve is consistently recognised as a ridgeline by the experts. As such, the thrust of the controls is to protect existing vegetation and restrict development on or near any ridgelines, in the interests of a high quality visual environment and it is to incorporate a pathway/bikeway.

81 It is apparent to me that the stage 1 application proposes lots 30 and 31, together with the new access road No 3, on or near this ridgeline. As such, the configuration of lots 30 and 31 means that their driveway access points from the road pavement will significantly restrict the provision of an adequate path/bikeway. The southern boundary of Lot 31 is setback 4m from the common boundary from Lots 4 and 5 Melaleuca Drive. Taking into account the topographical and vegetative constraints on these lots, it is likely the garaging would be constructed adjacent to this southern boundary of Lot 31.

82 Then considering the location of existing dwellings on lots 4 and 5 Melaleuca Drive, together with future boundary (privacy) fencing along Lot 31, I consider this would only facilitate a narrow 4m wide pathway of poor visual, convenience and safety amenity, which is an unsatisfactory element of the CP and stage 1 application. There also seems to be a difficulty in satisfactorily connecting a pathway from this 4m wide section to the road pavement/footpath.

83 The cross sections for this road 3 indicate that a relatively significant amount of cut is proposed to achieve its formalised alignment, which is not consistent with minimising development along the ridgeline.

84 The other significant aspect concerns the purpose of the shelter belt. Whilst I understand the common purpose is to provide a protective windbreak, this is not a common approach in urban areas. However I accept that DCP 2002 refers to the management of unfavourable cold winds in the Section H11.4 Climate and Micro Climate.

85 Considering the diverse opinions expressed by the planners, I am inclined rely on the evidence that in the subject context, the shelter belt this is to be multi – functional. The functions are to provide a buffer between the separate zones aside the road reserve, maintain an area for appropriate planting around the highest parts of the residential development and provide areas for an attractive pathway/ bikeway to provide a linkage to other facilities. The windbreak protection should be achieved along with these objectives.

86 Accordingly, I do not consider the achievement of these functions precludes an access way. But it would be of small scale and a less formal nature and alignment, which would then allow for a more informal natural planting regime. The proposed 6m wide, formalised planted ‘shelter belt’ within the isolated section adjacent to stage1 and abutting the southern boundaries seems to be an uncommon landscaping feature in this precinct.

87 I have reached this position having considered the 2 design options in Plan 5.1 and Plan 5.2 of the CP. DCP 11 shows the shelter belt for the entire length of the unmade road reserve and there can be residential lots adjoining stage 1 and stages 3, 5 and 6. As no differentiation is made in the DCP for the stage 1 area, it seems to me that the more appropriate and consistent shelter belt scheme is that in Plan 5.2. As I have noted, this would not necessarily preclude an accessway. In these circumstances, I consider the extensive earthworks forming Road 3 and subsequent revegetated shelter belt does not adequately satisfy the stated environmental objectives.

88 It seems to me that the existing development controls are endeavouring to maintain the existing vegetation and restrict the scale of development within the unmade road reserve so as to achieve the desired future character. I do not consider the extent of the 6m wide (carriageway) road and intrusion of lots 30 and 31 achieves this, particularly the disruptive effect lots 30 and 31 would have on the continuity of any pathway and shelter belt.

5.7 Objections

89 A considerable number of written and oral objections were lodged and have been considered. Most of the points of concern have been subsequently addressed by the experts and satisfactory outcomes incorporated in the CP. However, my assessment of the main objections is summarised as follows:

Sewer moratorium

Open space/parkland provision

Allotment size

Flood free access

As the external access point is somewhat remote from the site, any upgrading works would be priority matters for council.

Shelter belt reserve

Flora and fauna conservation

6 Submissions (clause 31 BLEP

90 I have carefully considered Mr Tomasetti’s submissions in reply regarding clause 31 of the BLEP. This clause was not specified in the SoFC and Mr Tomasetti submits it is not open for the council to raise it in its final submissions. In support of this submission he cites the ‘Practice Note in Class 1 Development Appeals’, which provides:

2. This practice note applies to appeals under ss 97 and 98, and applications under ss 96, 96AA and 96A of the Environmental Planning and Assessment Act 1979 in Class 1 of the Court's jurisdiction ("development appeals"). This practice note is to be known as Practice Note - Class 1 Development Appeals.

8. The respondent consent authority is to file and serve a statement of facts and contentions in accordance with Schedule B before 4.00pm on the third last working day before the first return of the proceedings.

10. If any party seeks to raise an issue of

fact or law

that it contends precludes the grant of consent or approval to the application, then the party raising that issue is to identify it in its statement of facts and contentions.

31. Parties require leave of the Court to amend their statement of facts and contentions. ... leave is to be sought by notice of motion accompanied by a short affidavit in support explaining the reasons for leave being sought.

91 Mr Tomasetti also relies on the authority in Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 where Justice Biscoe said:

"RAISING A NEW ARGUMENT ON APPEAL

44 The proponent submits that as the Senior Commissioner considered and determined all the council's contentions unfavourably to the council, it is not open to the council to say on appeal that he should have done more.

The submission warrants consideration of the statutory requirement to define and address the real issues in proceedings and the role of a council's contentions in defining the real issues.

45 The overriding purpose of the Civil Procedure Act 2005 is to facilitate the just, quick and cheap resolution of

"the real issues"

in the proceedings: s 56(1). The Court is empowered to give such directions as it thinks fit for the speedy determination of the "real issues" between the parties: s 61(1). In order to identify and determine the "real issues" in an appeal from a council refusal of a development application, the Court's practice is to direct the council to file and serve a statement of facts and contentions prior to the first return date: Practice Note Class 1 Development Appeals paragraph 8. ...

the statement of facts and contentions is a vehicle for the council to identify any provisions of an environmental planning instrument that it contends are "of relevance" to the development and to make precise contentions as to why consideration of those provisions should lead the Court to refuse the development application.

It is also a vehicle for the council (among other things) to make merit contentions as to why the development application should be refused.

46 ...

47 In Rowe v Australian United Steam Navigation Company Ltd (1909) 9 CLR 1 at 24 Isaacs J said:

"...it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that

parties must be bound by the course they deliberately adopt at the trial."

48 In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385 - 386 Mahoney JA said:

"...the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them..."

49 In University of Wollongong v Metwally [No 2] (1985) 59 AUR 481 at 483 the High Court stated:

"It is elementary that a party is bound by the conduct of his case..."

50 ...

53 In Design Power Assocs Pty Ltd v Willoughby City Council [2005] NSWLEC 470, (2005) 148 LGERA 233, Lloyd J, after reviewing some of the above authorities, said at [37] to [40]:

"[37] In the light of these authorities I find that the commissioner did not make any error of law in failing to refer to SEPP No 19, SEPP No 56 and SREP No 23. To allow the appeal on this ground could also set at nought the Practice Direction of the Court and Pt 13, r 14 of the Court Rules as to identification of the issues; ...

[38] The council argues that s 79C of the EP&A Act nevertheless mandates consideration of the relevant environmental planning instruments. However,

in Segal v Waverley Council (2005) 64 NSWLR 177, the Court of Appeal drew a distinction between administrative decision-making at the level of executive or local government, and a dispute-resolver such as a judge or other judicial or quasi judicial officer (such as a commissioner of the Land and Environment Court), who is called upon to decide issues raised by the parties in adversarial litigation. In that case Tobias JA (Beazley and Basten JJA concurring) said at [42]:

'In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them.

In such cases, 'the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties'

(At [95], emphasis added.)

[39] In

Segal

it was held that a commissioner of the Land and Environment Court is only 'bound to address the principal contested issues that were joined between the parties' (at [44], [99]), or 'the principal, central or critical issue the subject of the contest between the parties' (at [45], [69], [92])."

54 The council's submitted inference that the Senior Commissioner did not consider or address cli 2 and 45 is based on the fact that he did not expressly refer to those clauses in contrast to his express reference to cl 44. Having regard to the way the council conducted its case, that inference does not arise so far as concerns matters in contention before the Senior Commissioner and it was not essential that he expressly refer and relate his conclusions to cll 2 and 45.

55 In my opinion,

the Senior Commissioner was not bound to do more than decide the council's contentions,

which he did unfavourably to the council,

and it is not open to the council to say on appeal that he erred in law in not doing more....

In my opinion, having regard to the way the case was presented to him, the Senior Commissioner did not make any error of law, let alone an error of law that would justify intervention on appeal.

92 Accordingly, the applicant’s submissions are that the Court has a duty to deal with council’s contentions and no more, so as to achieve a “just, quick and cheap” resolution of the issues. Considering that the council did in fact obtain leave for an amended SoFC and no mention of cl 31 was made in that application, it presumably did not consider it relevant at the time. Had such application been made, Mr Tomasetti submits there would be substantive grounds to oppose as follows:

on

near

93 The reply also notes that the evidence of the respective experts did not raise cl 31 as a contention. It is therefore likely that the omission of cl 31 was not an oversight because the application of such clause would need to establish what:

any

"ridgeline"

"a long

narrow

elevation of land or a chain of hills or mountains".

94 Insofar as Mr Tomasetti referred to several other cases, I am satisfied that the parties have not specifically addressed this cl 31 provision. However, it is apparent to me that the form and scale of the development adjacent to the southern boundary, which is the higher part of the site, is a significant issue. The planners and other experts have dealt with the relative merits of the proposed development pursuant to the provisions of DCP 11 and DCP – Mullumbimby, resulting in opposing opinions on the acceptability of the proposal in this area.

95 Apart from this, there was an awareness by the applicant of the provisions of cl 31, which acknowledged in the SEE as follows:

Clause 31 - Development on Ridgetops:

96 The experts have expressed opinions about the impacts of the following components including, loss of vegetation along the ‘reserve’, adequacy of the shelterbelt, amenity impacts on neighbouring properties, location of future dwellings on lots 30 and 31 and whether the new access road should be constructed to provide access to lots 25 – 31.

97 Depending on the correct interpretation of cl 31, it may well be that some of these components should not be granted consent unless there are alternative locations for such development. But the question of alternative locations was not examined in any detail, in my assessment of the evidence. Although I note that Mr Connelly was subject to some questioning about alternate road alignments in Stage 1 and he agreed alternative locations were possible but this would probably cause other impacts that need to be carefully assessed.

98 Given the nature of this appeal, which involves the consideration of the strategic planning issues arising from the CP with direct implications for Stage 1, I consider that in accordance with the provisions of s79C, cl 31 is a relevant matter to be considered. Therefore, the parties should be given the opportunity to make further submissions, if a Notice of Motion is made to amend the SoFC, in respect of cl 31.

7. Findings

99 Having carefully considered the evidence, the submissions and undertaken a view, I consider it appropriate to present my findings to the parties prior to the making of final orders. In this regard I note generally that appeals involving staged applications, such as the current matter are uncommon. This type of appeal has additional complexity due to the need for the Court to satisfactorily resolve a number of strategic planning issues in the Concept Plan so that there is an effective outline for the future development of the various stages of the development.

100 In summary my findings are:

.1 Clause 31 BLEP

Therefore the parties have 7 days to inform the Court whether they wish to lodge a Notice of Motion to amend the SoFC so that the parties can address this clause.

.2 Concept Plan (CP)

In my assessment, the final CP is of acceptable form because it addresses the matters required for consideration under BLEP.

However, I do not consider the content of the CP in Exhibit “Z” is satisfactory at this stage because of the aforementioned concerns I have expressed, particularly the proposed development along the southern boundary of the site.

.3 Stage 1 subdivision plan

Mention;

R Hussey

Commissioner of the Court

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Citations

S J Connelly CPP Pty Limited v Byron Bay Council [2010] NSWLEC 1182

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

12

Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68

R v Button [2001] QCA 133

IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22

CITATION:	S J Connelly CPP Pty Limited v Byron Bay Council [2010] NSWLEC 1182
PARTIES:	APPLICANT S J Connelly CPP Pty Limited RESPONDENT Byron Bay Council
FILE NUMBER(S):	10710 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Staged subdivision application; concept plan; sewerage provision arrangements; ridgeline development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Coastal Protection Act 1979 State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 44 State Environmental Planning Policy No 71 — Coastal Protection State Environmental Planning Policy No. 55— Remediation of Land State Environmental Planning Policy – Infrastructure North Coast Regional Environment Plan Byron Local Environmental Plan 1988 Byron Development Control Plan 2002 Byron Development Control Plan No. 11
DATES OF HEARING:	8, 9, 10, 11, 12 February 2010, 28, 29, 30 April 2010, 18 and 21 May 2010
DATE OF JUDGMENT:	16 July 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P. Tomasetti, (SC) SOLICITOR McCartney Young Lawyers RESPONDENT Mr A Seton (solicitor) SOLICITOR Marsdens Law Group