Shannon Pacific v Minister for Planning

[2007] NSWLEC 669

Land and Environment Court

of New South Wales

CITATION:	Shannon Pacific v Minister for Planning [2007] NSWLEC 669
PARTIES:	Applicant: Shannon Pacific Pty Ltd Respondent: Minister for Planning
FILE NUMBER(S):	11133 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- flooding risk; impact on SEPP 14 wetland
DATES OF HEARING:	08/08/2007, 09/08/2007, 10/08/2007 and 14/09/2007
DATE OF JUDGMENT:	12 October 2007
LEGAL REPRESENTATIVES:	Applicant: Mr C McEwen, SC instructed by Ms N Lowe, solicitor of Pike Pike & Fenwick Respondent: Ms S Duggan, barrister instructed by Mr M McDonald, legal officer of the Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

12 October 2007

11133 of 2006 Shannon Pacific Pty Ltd v Minister for Planning

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by the Minister for Planning (the Minister) of a development application to subdivide lot 4 DP1022342, New Entrance Road, South West Rocks into two allotments and to construct a caravan park for 43 sites on one of the lots. At the commencement of the hearing the applicant amended the application by deleting the subdivision part of the proposal.

The site

2 The site is on the eastern side of the Macleay River, opposite the confluence with the Macleay Arm, about 3km to the west of South West Rocks. The river is about 20m from the western boundary of the site. To the east are coastal wetlands protected under State Environmental Planning Policy 14 (SEPP 14). To the north is a small parcel of freehold land and a raised drainage pipe, sometimes referred to as a levee road. To the north of the pipe, are more coastal wetlands.

3 To the south is a tavern, also on lot 4. Further to the east, beyond the coastal wetlands, is low-density housing. Further to the south, beyond the tavern, is a public boat ramp.

The proposal and its history

4 The applicant proposes to construct a caravan park on part of lot 4. The caravan park is to have 43 sites for moveable dwellings. Associated works are barbecue areas, a building for kitchen and amenities, a two-storey office and manager’s residence, internal roads, bunds and retaining walls, visitors’ parking and landscaping.

5 The applicant lodged the development application in June 2004, proposing subdivision into three lots, one of which was for the caravan park. Following exhibition, the Minister received submissions from six government authorities and 310 submissions from the general public. Of the latter, 229 were objections, while 81 were in support of the proposal. The Minister refused the application in November 2006. The applicant filed the appeal in December 2006, relying first on an amended proposal that subdivides the site into two lots, then on a further amendment that deletes subdivision altogether.

Relevant planning controls and policies

6 State Environmental Planning Policy 71 – Coastal Protection (SEPP 71). The Policy identifies, among other things, caravan parks as “significant coastal development”. Section 76A(7)(a)(i) of the Environmental Planning and Assessment Act 1979 classifies the proposal as “State significant development”, being a tourist facility within the coastal zone. This is the reason for the Minister’s being the consent authority rather than Kempsey Shire Council.

7 State Environmental Planning Policy 14 – Coastal Wetlands (SEPP 14) provides statutory protection to wetlands identified in a Schedule. Much of the area of lot 4, though not the part on which the development is proposed, is so identified.

8 North Coast Regional Environmental Plan 1989 sets out heads of consideration for determining development applications on the NSW coast. Scenic quality is one of several considerations.

9 The Floodplain Development Manual (the Manual) is a policy document of the State government issued in 2005. A s117 Direction requires draft local environmental plans to be consistent with it.

10 Kempsey Local Environmental Plan 1987 (the LEP) zones the site 7(d) Scenic Protection. In this zone tourist facilities are permissible.

11 Kempsey Shire Council Flood Risk Management Policy – Policy No C23.6 (the council’s Flood Policy) classifies the site as “flood prone land” by virtue of the fact that it is inundated in the 1:100 event.

12 Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 contains, among other things, standards for the layout of manufactured home parks. The proposal complies with all standards.

Matters in Contention

13 The Minister submitted an Amended Statement of Contentions containing seven matters, ie

· Flooding hazard constitutes an unacceptable risk to public safety.

· Impact on SEPP 14 wetlands: the caravan park is to be built to the wetland boundary without a buffer zone.

· Visual impact: the proposal will appear inappropriate in the scenic protection zone.

· Suitability of the site: the site is unsuitable for the development because it is constrained, forces the caravan sites to be too close, does not allow for adequate amenities and is too close to a noisy tavern.

· The public interest: because of the above shortcomings the proposal is contrary to the principles of ecologically sustainable development.

· Bushfire management: the proposal does not comply with the general terms of approval of the NSW Rural Fire Service dated 9 May 2007.

14 By the end of the hearing, only the two first matters of contention remained. The Minister’s planning expert, Ms K Gordon, declared herself satisfied with the appearance of the caravan park, thus removing the third issue. The respondent did not pursue the fourth contention with any expert evidence. There was also no evidence on the fifth contention. Bushfire risk, which was the seventh matter in the list, was resolved before the hearing.

The objectors’ evidence

15 As mentioned before, the Minister received 310 submissions, of which 229 objected to the proposal, while 81 were in favour. The Court heard the evidence of the following objectors during the site visit.

16 Mr Kevin Hill, who lives at 38 Ocean Street, South West Rocks and is the President of the South West Rocks Ratepayers’ Association, said that the proposal was inappropriate given SEPPs 14 and 71, the scenic protection zoning of the land and the risk from flooding. The environmental impacts would be severe. In addition, he was concerned about stormwater disposal and the noise for surrounding residents from the use of residential streets for access.

17 Mr John Hampton, who lives at 344 Arakoon Road, South West Rocks, said that the impact on the wetland would be severe. The proposed bund would increase the unnatural look of the proposal. He doubted that there was justification for another caravan park. Mr Maxwell Rex Orth, who lives at 5 Pacific Street, South West Rocks, had similar concerns to Mr Hill. He wondered what would happen to the kangaroos that now frequent the site. Mr Robert Player, who lives at Tahlee Close, was mainly concerned about access and the additional traffic generated by the development.

18 Mr Flanagan spoke on behalf of Ms Shirley Doyle, who lives at 2 Maytamoran Close, South West Rocks and is a senior elder, said that the sensitive site between wetland and river should be protected from development. Ms Karen Gribbin, who lives at 5 Beech Place, endorsed all the views expressed above. She pointed out that the proposal does not comply with the Floodway Strategy, that the evacuation point at the Catholic Church was inadequate and that the site would have more native plants if it were not continually slashed. She noted that there were already enough caravan parks in the area.

Appearance (visual impact)

19 The Court heard the evidence of Ms Kerry Gordon, a town planner retained by the Minister, Ms Deborah Laidlaw, a town planner retained by the applicant, and Mr Martin Bryant, an architect and landscape architect retained by the applicant. The experts reached agreement that, provided there was a 6 metre wide landscaped screen along the western boundary, the proposal’s appearance was acceptable.

20 Given agreement among the three experts, I accept that appearance is not a reason for refusal. However, I think there is something illogical in locating a caravan park on the banks of a river and then screening it so densely that one can neither look in or out, thus eliminating much of the benefit of the location. If a development must be invisible in order to be acceptable, then perhaps it should not be there.

21 In order to avoid any misunderstanding, I hasten to add here that, given the constraints and location of the site, in my opinion the actual design of the caravan park is excellent. However, the design of the park does not include design of the structures within it. Because the area for the park is so constrained, being hemmed in by wetlands, a road and a tavern, it will have an urban appearance, with the structures quite close to each other. It is not a park where it is possible to make the landscaping dominate the structures, so that the man-made elements would disappear among the trees rather than behind them. The experts appear to think of the landscaping as a kind of a curtain. The need for a dense landscape screen, acknowledged by Ms Gordon and Mr Bryant (if not by Ms Laidlaw) leaves me with a sense of unease about how the park would look. However, since the concern does not appear to be shared by any of the experts, it is not a reason for refusal.

Risk from flooding

22 There are no statutory instruments relevant to the resolution of the flooding issue. As part of the public interest, the Court may take into account the Manual, which is a policy of the State government. The Manual generally promotes a merit-based approach to proposals on floodplains, - an approach that favours the applicant’s position. However, the Manual is not in favour of private evacuation plans on which the applicant relies. On page L3 it states

…private or site specific flood plans should not form the basis for development consent.

23 The council’s Flood Policy, which classifies the site as “flood prone land” states under paragraph 6.3.3 that on flood prone land “no new caravan parks will be permitted”. While the words “not permitted” are inappropriate in a Policy, they nevertheless indicate that the council opposes the establishment of new caravan parks on flood prone land. That opposition is somewhat softened by the contents of the following paragraph.

24 In an email message of 4 July 2005 to Ms A Rojas, a planner with the Coastal Team of the (then) Department of Infrastructure, Planning and Natural Resources, Mr R Pitt, a planner with Kempsey Council, stated:

In the past, council has applied the policy based on the merits of individual applications. Where the impacts of flooding on a proposed development is assessed as acceptable, having regard to factors such as depth of inundation, velocity, the availability of an evacuation route and adequate warning times, it would be unreasonable to refuse an application and a variation of the policy would be justified.

25 The above leaves it unclear whether the council has actually received and application for a new caravan park on flood prone land in recent times and, if yes, whether it has approved it.

26 The Court heard the evidence of Dr Phillip Haines, a hydrologist retained by the Minister, and Mr David McConnell, a hydrologist retained by the applicant. The two experts reached a great deal of common ground. They agreed that the site in its present state is inundated in the 1:5 year event; that it needs to be modified by filling and the erection of a bund; and that raising New Entrance Road would be a better solution for evacuation than the one indicated in the proposal, which is through the tavern carpark. In oral evidence Mr McConnell agreed that an evacuation route via New Entrance Road is not necessary. However, I understood him to continue to believe that such a route was preferable.

27 It seems to me that the difference between Dr Haines and Mr McConnell is one of degree. They agree that the raising of the relative level of the site and the construction of the bund along the western boundary would reduce the frequency of inundation. Dr Haines raised questions about the impact of the intense landscaping of the bund on its major function, which is to stop water entering the site. He pointed out that bund walls are not usually landscaped. He agreed, however, that any damage, such as the ripping out of trees during flooding could be repaired afterwards, so the landscaping would not threaten the long-term effectiveness of the bund. Mr McConnell had no concerns with the dual function of the bund.

28 The major difference between the experts is the extent to which reliance can be placed on a private evacuation plan. Mr McConnell considers that the existence of the plan renders the risk from flooding acceptable. Dr Haines adopts the opinion expressed in the Manual, which warns against reliance on private evacuation plans. Dr Haines believes that the implementation of private plans cannot be guaranteed and therefore there is no assurance that the plan will be applied for the life of the property. I note that Dr Haines found no fault with the evacuation plan itself (see letter of 11 September 2007 from Mr M McDonald, legal officer of the Department of Planning, Exhibit AA); he objects to it only because it is not a public plan.

Consideration of flooding issue

29 The flooding issue in this case is finely poised. Given that the applicant wishes to use a flood prone site for a caravan park, it has done the best it can to reduce the risk from flooding. The question is whether the best is good enough.

30 The two major weaknesses in the applicant’s case are the evacuation route and the private nature of the evacuation plan. The evacuation route is unintuitive, even counter-intuitive. It takes people through a side entrance, not normally used, then through the carpark of the adjoining tavern, and then through a raised path across vacant land to Marlin Parade. It is an evacuation route that requires explanation and direction, all the more so because many of the park occupants are transients. People would naturally tend to leave a site the way they came, ie through New Entrance Road.

31 The weakness of the evacuation plan is that it is not public. While I accept that the applicant cannot do anything about this weakness, I give some weight to the fact that the Manual advocates against reliance on private plans. Moreover, the unintuitive nature of the escape route increases the need for a reliable public evacuation plan. If an escape route to New Entrance Road were combined with a private plan, or if the proposed route were combined with a public plan, the flood issue would probably be resolved. It is the combination of the unintuitive route with the absence of a reliable public evacuation plan that renders the risk of flooding to the proposal unacceptable.

Impact on wetland

32 The Court heard the evidence of Dr Peter Nelson. a senior policy officer of the Coastal Branch of the Department of Planning and Mr James Warren, an ecologist retained by the applicant. Unlike the hydrologists, the ecologists were diametrically opposed and agreed on nothing of importance.

33 The first and major disagreement is the value Dr Nelson and Mr Warren attribute to the wetland on the site. Dr Nelson believes that the wetland is still functioning. His report includes a photograph that he took of the wetland that shows 40 birds of 10 species. To the inexpert eye, the scene is delightful. Mr Warren considers the wetland as disturbed, having low to moderate value. He notes that Birds of Australia has recorded only one species (the Eastern Curlew) on the wetland, whereas for some other wetlands it has recorded in the order of forty species. Out of ten points he would award only three or four to the wetland. Dr Nelson’s rating was much higher: seven to eight.

34 The one matter on which the experts did agree was that the existence of the raised drainage pipe stops tidal flows to the site and is responsible for the fact that the wetland on the site has a lower value than the wetland to the north of the raised drainage pipe. (Both experts rated the wetland to the north nine or ten.)

35 The second matter in disagreement was the impact of the proposal on the wetland. Dr Nelson believes that noise, light and pollution emanating from the caravan park would have an adverse effect on birdlife in the wetland. Mr Warren points out that shorebirds would be at the far eastern end, far removed from the caravan park. Human noise, unlike industrial noise, would not disturb the birds. There would be no light spill through the dense vegetation. Management would control the tipping of rubbish and grass cuttings. Mr Warren recommends a plan of rehabilitation for the wetland and a plan of management for the caravan park.

36 The third matter in disagreement was the need for a buffer. Dr Nelson believes that a buffer of 20-50m is needed. This is because a plan of management controlling activities that might harm the wetland is unlikely to work in the long term. Mr Warren points out that salt marsh type vegetation does not require a buffer.

37 The fourth matter in disagreement was the effect of the bund. According to Dr Nelson, wetlands expand and contract naturally. The effect of the bund is to contain it. Mr Warren believes that the bund has no effect.

Consideration of impact on wetland

38 The fact that the two experts attributed such different values to the wetland poses a difficulty for the Court. On balance, it seems to me that the Court should adopt Dr Nelson’s rating of the value (or at least close to his rating). This is because it was common ground that the raised drainage pipe was the cause of the deterioration of the wetland. The evidence indicates that the pipe no longer functions. While there is no suggestion that either the State government or the council intends to remove it, I cannot assume that it would stay forever. If it were removed, the evidence suggests that the wetland would revert to very high value.

39 The second matter of concern is the absence of a buffer. The retaining wall required to fill the site is located on the boundary of the wetland. While SEPP 14 does not contain a requirement for buffers, it is unusual for proposals to be this close to a wetland.

40 The third matter of concern is related to the second, namely the impact on human behaviour on the birds in the wetland. Mr Warren acknowledged the need for a Plan of Management. It seems to me that it is better to design out the impact of human behaviour than to attempt to control it.

41 To approve the application, the Precautionary Principle would require me to be thoroughly convinced by Mr Warren’s evidence that the proposal will not have an adverse impact on the adjacent wetland. However, his evidence leaves doubts in my mind in regard to that impact. A caravan park is not the kind of proposal that can be approved on a trial basis allowing its impacts to be tested later. In my opinion, there is a real possibility of adverse impact and therefore the application must fail.

Conclusions

42 At the commencement of the hearing the application had several practical design shortcomings. These were resolved in the period between the first three and the fourth day of the hearing. However, three inherent difficulties remain. They arise out of the flood prone nature of the site and its closeness to a wetland identified in SEPP 14. Since the difficulties are beyond the applicant’s ability to resolve, they suggest that the site may not be suitable for a caravan park.

43 The first two negative features are the unintuitive nature of the evacuation route combined with the absence of a public evacuation plan and the transient nature of the occupants. It was submitted during the hearing that the possibility of using New Entrance Road as an escape route has not been explored. I cannot comment on this, other than to refer to both experts’ opinion that an escape route through that road would be a much better solution.

44 The third difficulty is the proposal’s proximity to the SEPP 14 wetland. The site is too narrow to allow a buffer to be provided. This poses a difficulty to which the applicant cannot respond without shifting the proposal to another part of lot 4.

Orders

1. The appeal is dismissed.

2. Development application to construct a caravan park for 43 sites on lot 4 DP1022342, New Entrance Road, South West Rocks is determined by refusal.

3. The exhibits are returned.

_________________________
Dr John Roseth
Senior Commissioner