Silverwater Estate Pty Ltd v Auburn Council - [2001] NSWLEC 60

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Silverwater Estate Pty Ltd v Auburn Council and Another [2001] NSWLEC 60

PARTIES:
APPLICANT:
Silverwater Estate Pty Ltd
RESPONDENTS:
Auburn Council and Another

FILE NUMBER(S): 10657 of 2000

CORAM: Talbot J

KEY ISSUES: Development Consent :- appeal against conditions requiring riparian buffer zones - whether designated development - ongoing effect of conditions of earlier development consent - whether SIS can be required where species declared endangered after grant of consent but prior to hearing of appeal limited to conditions - retrospective approval to fill already in place - force of an interlocutory judgment regarding alleged breach of another development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5A, s 78A, s 79C, s 80(2), s 80A, s 82, s 83, s 91A, s 91, s 96
Environmental Planning and Assessment Regulation 1994 cl 52A, cl 53, Sch 3
Rivers and Foreshores Improvement Act 1948 s 22A, s 22B, Pt 3A
Threatened Species Conservation Act 1995 Pt 6 Div 2, Sch 2
Land and Environment Court Act 1979 s 39(2), s 39(6A)

CASES CITED: Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208;
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434;
CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270;
Connell v Armidale City Council (Pearlman J, NSWLEC, 25 September 1996, unreported);
Donnelly v Delta Gold Pty Ltd and Ors [2001] NSWLEC 55;
Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186;
F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306;
Fawcett Property Ltd v Buckingham CC [1961] AC 636;
Foodbarn Pty Ltd & Ors v Solicitor-General (1975) 32 LGRA 157;
Herbert v Warringah Council (1997) 98 LGERA 270;
Hooper & Anor v Lucas & Ors (1990) 71 LGRA 27;
John Bruce and Partners Pty Ltd v Willoughby Municipal Council (1987) 64 LGRA 67;
Newbury District Council v Secretary of State for the Environment [1981] AC 578;
Penrith City Council v Waste Management Authority & Anor (1990) 71 LGRA 376;
Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236;
Pyx Granite Co Ltd v Ministry of Housing and Local Government & Anor [1958] 1 QB 554;
Rutland v Shoalhaven City Council (1997) 94 LGERA 370;
Steelbond (Sydney) Pty Ltd v Marrickville Council (1994) 82 LGERA 192;
Swadling & Anor v Sutherland Shire Council & Ors (1994) 82 LGERA 431;
Water Administration Ministerial Corporation v Auburn Council & Ors [2000] NSWLEC 76;
Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451

DATES OF HEARING: 5/10/2000, 6/10/2000, 9/10/2000, 10/10/2000, 11/10/2000, 18/10/2000, 30/10/2000, 31/10/2000, 1/11/2000, 2/11/2000, 3/11/2000, 14/11/2000, 13/02/2001, 26/03/2001

DATE OF JUDGMENT:
04/04/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M H Tobias QC with Mr P R Clay (Barrister)
SOLICITORS:
Blake Dawson Waldron
FIRST RESPONDENT:
Mr J E Robson (Barrister)
SOLICITORS:
Abbott Tout
SECOND RESPONDENT:
Mr P C Tomasetti (Barrister) with Mr M Fraser (Barrister)
SOLICITORS:
Department of Land and Water Conservation

JUDGMENT:

IN THE LAND AND Matter No. 10657 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 4 April, 2001

Silverwater Estate Pty Ltd

v

Auburn Council

Water Administration Ministerial Corporation

Second Respondent

REASONS FOR JUDGMENT

1. The subject site is situated at 83 Derby Street adjacent to Duck River at Silverwater within the area of the first respondent. The first respondent granted development consent No 301/00 for the subdivision of the subject land into 23 allotments on 10 July 2000.

2. As the development application proposed some civil works on the site which would require a permit pursuant to Pt 3A of the Rivers and Foreshores Improvement Act 1948 (“the RFI Act”) the development application was referred to the Department of Land and Water Conservation (DLWC) seeking general terms of approval on behalf of the Water Administration Ministerial Corporation (“the corporation”) pursuant to the Environmental Planning and Assessment Regulation 1994 (“the EP&A Regulation”) cl 52A. The corporation is a relevant approval body within the meaning of s 91A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

3. On 25 and 26 May 2000 the DLWC requested certain additional information pursuant to cl 53 of the EP&A Regulation.

4. On 14 June 2000 DLWC finalised the general terms of approval and lodged them on behalf of the corporation with the council.

5. The class 1 application by way of an appeal against the deemed refusal of the development application was filed by the applicant on 7 July 2000.

6. The development application was determined by the council as an application for integrated development pursuant to s 91A of the EP&A Act on 10 July 2000.

7. The development consent was granted subject to two sets of conditions, namely, those imposed by the council, together with the conditions lodged with it by the department.

8. In an amended statement of issues filed 21 September 2000 the applicant contends that the imposition of certain identified conditions is unreasonable for reasons therein set out and proposes alternative conditions.

9. The corporation has been joined as a party to the proceedings.

10. The principal complaint relates to conditions that require a riparian zone or setback in three areas. The first relates to a proposed 30 metre setback from Duck River. The second relates to a setback from that part of the northern boundary of the industrial allotments along a wetland comprising a saltmarsh. Thirdly, there is a dispute in relation to the area of setback to be provided along a mangrove lined drainage channel on the eastern side of the property.

11. The dispute in relation to the setbacks relates to the actual width of the riparian zone and the point from which it should be measured in each case as well as the treatment of the land within the setback.

12. Along the Duck River the second respondent advocates for a 30 metre vegetated zone extending from the top of the bank whereas the council seeks a 30 metre vegetated zone measured from the mean high water mark. The applicant concedes that there can be a 30 metre foreshore building line taken from the mean high water mark or site boundary provided that the first 18 metres be set aside as a vegetated zone, subject to an easement for public access 3 metres wide within that vegetated zone.

13. The corporation and the council both seek a 30 metre vegetated zone measured from the top of an existing rubble wall along the edge of the saltmarsh wetlands. The applicant proposes a 5 metre vegetated zone from an existing fence in this area which would be equivalent to approximately 6 metres from the top of the rubble wall. The applicant and the council would be satisfied with a 5 metre vegetated zone from the boundary along the edge of the human made mangrove lined drainage channel, although the second respondent seeks to have a vegetated zone 10 metres from the top of the bank of the channel.

14. The applicant does not agree with the provision of a cycleway proposed by the council and the corporation but will not raise any objection in that regard provided that the area of the cycleway is within any area designated as a riparian vegetated zone. Both the council and the corporation argue that the cycleway should be 5 metres wide along the area adjacent to the saltmarsh, whereas it is proposed that it be only 3 metres wide along the Duck River frontage. The applicant suggests that if 3 metres is sufficient along the Duck River then there is no reason why that width will not suffice along the wetland.

15. There remains some doubt as to the utility of the proposed cycleway and its capacity to be linked to other publicly accessible areas. However, the applicant’s position is that if the Court is otherwise satisfied that the cycleway can be provided then subject to the above reservations it will raise no objection.

16. Incidentally, both the council and the corporation require a contamination audit of the rubble wall referred to and if practicable for it to be removed at the applicant’s expense. Furthermore, the corporation requires an area of apparent fill placed in the area of the wetland, referred to as the grassy knoll, to be removed and saltmarsh re-established in that area at the applicant’s expense. There is a real dispute as to whether a corridor, even of 30 metres, will be wide enough to produce the result the respondents seek to achieve from providing a riparian corridor and buffer.

17. The applicant does not dispute that there could be a public benefit in providing appropriately wide riparian zones so as to contribute to the biodiversity along the Duck River by promoting connectivity between areas and different ecosystems. However, it strongly argues that neither the council nor the corporation have been able to establish the appropriate nexus between the requirement for the establishment of the riparian zones or corridors and the proposed development. Accordingly, except to the extent of any consent forthcoming from the applicant, the conditions proposed by the council and the corporation are beyond power or at the very least are unreasonable.

18. Other peripheral issues arise in relation to the future management of the wetland.

19. The central concern of the corporation has been articulated as the alleged threat to threatened species of flora and to the habitat of migratory wading birds found within the saltmarsh in particular. The corporation is also anxious to establish a riparian corridor along Duck River to facilitate the movement of wildlife from one area to another.

20. In general terms the applicant contends that the demands raised by the corporation are not properly related to the development and in any event are excessive. It is generally agreed that there should be a 30 metre setback from Duck River although there is some contention in respect of whether the riparian zone should commence at the boundary of the land or from the bank of the river.

21. Other peripheral issues such as the provision of easements to provide a public access along the edge of the waterway must also be dealt with.

22. The main protagonists are the applicant and the corporation. The council has also concentrated on the need for the appropriate setbacks, riparian zones and a public access way in accordance with various policies, instruments and guidelines.

23. Although the abovementioned merit issues were the catalyst for an avalanche of expert reports, the corporation also raised a bevy of legal challenges. In the first instance it is appropriate to deal with the legal issues.

The legal issues

(1) If the Court were to find that the development is likely to have a significant affect on the Wilsonia Backhousei (Wilsonia), a vulnerable species, does the Court have power to grant a consent, whether or not subject to deferred commencement conditions? During the course of evidence the corporation raised the prospect that the alleged affect on the saltmarsh as the habitat of migratory and endangered birds justified the preparation of a species impact statement.

(2) What is the power of the corporation under the Rivers and Foreshores Improvement Act 1948 to impose conditions on a Pt 3A permit, and consequently as an approval authority to notify such conditions as terms of approval to a consent authority for integrated development?

(3) Whether the development proposed under development application No 301/00 lodged with Auburn Council, comprises designated development as a waste management facility or works within the meaning of those words in Sch 3 to the EP&A Regulation.

(4) If the development proposed is designated development, whether the development can be lawfully carried out in the absence of an environmental impact statement undertaken, prepared and dealt with in accordance with the EP&A Act.

(5) Whether granting development consent to the filling of land in breach of the conditions of a prior development consent is a breach of the Act prescribed by s 80(2) of the EP&A Act 1979 ( Rutland v Shoalhaven City Council (1997) 94 LGERA 370).

Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council

Connell v Armidale City Council

Herbert v Warringah Council

Is a species impact statement required?

25. Pursuant to s 78A(8)(b) of the EP&A Act a development application in respect of development on land that is, or is part of critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats must be accompanied by a species impact statement prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 (“the TSC Act”).

26. Section 5A of the EP&A Act prescribes eight factors to be taken into account in deciding whether there is likely to be a significant affect on threatened species, populations or ecological communities, or their habitats.

(a)

Wilsonia Backhousei

28. It is not in dispute that the plant Wilsonia is found on the site within the area of the saltmarsh.

29. The development application lodged with council on 1 May 2000 was not accompanied by a species impact statement (SIS). At that date Wilsonia was the subject of a Preliminary Determination as a vulnerable species pursuant to the TSC Act. The determination was made on 5 March 1999.

30. The development application was determined by the granting of consent by the council on 10 July 2000. On 15 September 2000 the New South Wales Scientific Committee gazetted the inclusion of Wilsonia in Sch 2 to the TSC Act as a vulnerable species.

31. So far as the Court is aware there is no direct authority that deals with the situation where a species becomes a threatened or vulnerable species after a development application is lodged but before it is finally determined by the consent authority or the Court. In the present case the council had already granted a consent by the time the Wilsonia was listed. Although the appeal had been lodged prior to the determination of the application by the council the combined effect of s 82(2) and (3) and s 83(2) is that the determination by the granting of consent subject to conditions did not become effective pending the determination of the appeal. It nevertheless continued to exist although the benefit of acting on the consent by carrying out the development could not be taken until the appeal was determined otherwise than by refusal of consent ( Swadling & Anor v Sutherland Shire Council & Ors (1994) 82 LGERA 431).

32. The only person to undertake an eight part test is the applicant’s consultant, Matthew Richardson. He was commissioned by the applicant to locate and identify Wilsonia within the saltmarsh area. The second respondent asserts that the eight part test undertaken by Mr Richardson is totally inadequate and has been prepared after the event and as a consequence of the need to undertake a “design on the run” .

33. Mr Richardson concludes that the proposed development will not have a significant impact on Wilsonia provided any drainage easement is designed to avoid patches of the vegetation, that there should be no access to the drainage line from the eastern and western sides through the saltmarsh, that the patches of Wilsonia be fenced during construction to prevent access and that overshadowing is prevented. He also recommended the use of appropriate sediment and siltation control devices to prevent sediment discharge onto populations of the species and that appropriate measures be taken to contain any acid sulfates and the threat of weed invasion.

34. The drainage plan produced by the applicant initially showed the proposed route for the stormwater discharge pipe to the Duck River through an area to the west of an isthmus extending into the saltmarsh subsequently found to be occupied by the Wilsonia. During the hearing various issues were raised by the second respondent’s witnesses in relation to the route of the stormwater pipe and the impact on the Wilsonia. These included the disturbance of contaminated areas, acid sulfate soils, the affect of filling to be introduced onto the site, excavation through an area of fill already on the site, excavation of the river bank, damage to the mangroves, disposal of fill excavated for the drainage line and protection of work areas. The applicant’s witnesses attempted to meet these issues throughout the course of the hearing. Amended drainage layout plans were proposed successively on 13 September 2000, 9 October 2000 , 30 October 2000 and 2 November 2000.

35. Even though the relevant experts conferred on site pursuant to a Court direction on Tuesday, 5 December 2000 in order to consider amended plans, the dispute between the various experts as to the preferred route for the stormwater drainage has not been finally resolved. As a consequence the parties were granted leave to reopen to make further submissions on this issue on 13 February 2001. A joint statement by relevant experts concerned with this issue was finally tendered and accepted on 26 March 2001.

36. The second respondent does not support a drainage line, as proposed by the applicant in the course of the hearing, through an isthmus which extends into the saltmarsh wetland between two groups of Wilsonia. The applicant submits that if the Court is apprehensive about the impact of constructing the drainage line along and through the isthmus knoll the concern can be satisfied by a condition that requires the drainage to be designed and constructed so that it does not impinge on the Wilsonia in any way. Although no direct evidence of the alternatives available has been presented, it has been demonstrated to the Court that there are at least four options although there is significant disagreement about the preferred option.

37. Two of the options are identified above. A third option formulated by the applicant is for the drainage line to be constructed so that it discharges in an area adjacent to an old boat ramp on Duck River. The fourth option proposed by the second respondent’s experts is to divert some of the flow broadly through a proposed wide buffer zone and/or swale drain. The Court does not have detailed information in respect of the latter two options. What appears to be abundantly clear is that the drainage layout approved by the council on 10 July 2000 is no longer being pursued by the applicant. The changes have been wrought principally to deal with the prospect of discharge into the wetland in proximity to the Wilsonia.

38. The issue of the Wilsonia was raised late. The applicant has provided alternatives to the approved proposal in an attempt to overcome the prospect of the alleged impact on the threatened species and remains committed to this consequence.

39. The issues in the appeal are set by the applicant’s objection to specified conditions. Both respondents have recognised that the development can proceed albeit subject to conditions. The conditions of consent granted by the council were a consequence of consultation between the two respondents. Neither was moved to refuse consent.

40. There was no legal requirement for an SIS to take account of any likely significant affect on the Wilsonia as a threatened species at the date the development application was lodged with the council or at any time prior to its determination by the granting of consent.

41. The argument has not been resolved by the evidence in these proceedings. Beyond the steps taken pursuant to the Expert Witness Practice Direction 1999, the Court is not equipped to broker a solution between the parties. If further discussions fail to produce an agreement then one prospect may be a further application to the council. This could be by way of a fresh development application or an application pursuant to s 96 of the EP&A Act. The Court does not stay to endorse either course or to consider the matter further in any way. Nevertheless, it would be appropriate for there to be a condition which requires stormwater drainage to be designed and constructed so that it does not impinge on the Wilsonia in any way as suggested by the applicant. If such a condition is agreed to by the applicant then the prospect of impact on the Wilsonia in the circumstances will not warrant refusal of the application.

42. The existing development consent is not open to challenge solely as a consequence of the subsequent declaration of the Wilsonia as a vulnerable species.

43. In any event, the Court has the benefit of several eight part tests conducted by Mr Richardson to take account of the changes to the drainage layout plans. He concludes that the proposed development will not have a significant impact on Wilsonia Backhousei if certain specified mitigation measures are applied. A species impact statement is not recommended by Mr Richardson. Although his conclusions have been challenged by the second respondent’s experts he was not required for cross-examination.

44. There is still some disagreement between the experts. The second respondent’s witnesses agreed at a meeting on site, directed by the Court, that the proposal can potentially be constructed without affecting the associated wetland and the endangered species provided that all appropriate best management practices are correctly designed, implemented and maintained and that weather conditions during the weeks of construction do not exceed design criteria. Nevertheless, they believe there is a very low probability that all these conditions will be met.

(b)

Threatened Bird Species

46. The second respondent’s consultant avian ecologist, Philip Straw, relies upon the recording of five threatened faunal species in the Upper Hunter Parramatta Estuary in recent years as justification for the preparation of an SIS.

47. The applicant has raised strong objections to the submissions made by the second respondents in respect of the five alleged threatened faunal species as this issue was never raised until the second respondent’s Senior Environmental Officer, Janne Grose, prepared her statement of evidence in chief when she referred to the lack of an eight part test to determine if an SIS was required.

48. Apart from the fundamental objection to the raising of the issue of the requirement for an SIS in respect of the five threatened species of birds, the applicant says that the evidence before the Court enables it to determine that by its own response to the questions in the eight part test there is no relevant or likely significant affect on the fauna or its habitat. Thus, says the applicant, no SIS is required.

49. The fact is that no eight part test has been carried out in respect of endangered species of fauna and no SIS has been prepared on that account.

50. Although there is considerable weight in the applicant’s argument that it is unreasonable for the second respondent to raise the issue of the requirement for an SIS in the manner it has done, it is nevertheless imperative for the Court to satisfy itself whether or not there is a need for an SIS irrespective of how the issue arises.

51. It is clearly a distinct issue to the impact on the Wilsonia. The latter arises in the unusual context of the Wilsonia being included in the Schedule after the determination of the development application by the council granting conditional consent.

52. If pursuant to s 78A of the EP&A Act an SIS was required to accompany the development application as a consequence of the likelihood of a significant affect on the migratory birds then the determination of the development application by granting of development consent with or without amendment to the conditions is outside the jurisdiction of the Court, because it does not have a valid development application before it.

53. It is not open for the Court to determine the question of whether the development is likely to significantly affect threatened species, populations or ecological communities or their habitats for the purpose of s 78A(8)(b) of the EP&A Act by taking into account measures to be introduced as a condition of the proposed consent in order to mitigate the impact of the development, unless the mitigating or protective measures are part of the proposal submitted in the development application ( Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186; Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434; Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55).

54. Furthermore, a condition designed to mitigate impact introduced during the course of a hearing cannot be taken into account in this context ( Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451).

55. The likelihood of there being a significant affect on the wetland as a habitat for endangered migratory birds and the necessity for an SIS can be conveniently considered in conjunction with the issue concerning the provision of a riparian zone or buffer along the edge of the wetland.

The power to impose conditions on a Pt 3A permit

56. It is well settled that the power of the Court on appeal set out in s 39(2) of the Land and Environment Court Act 1979 (“the Court Act”) is to exercise all the functions and discretions of the consent authority in relation to the consideration and determination of an application for development consent, including the imposition of conditions in accordance with s 80A of the EP&A Act.

57. Where the development is integrated development, s 91A(3) of the EP&A Act gives the consent authority power under that Act to impose any conditions that an approval body could impose as a condition of its approval. The Court is exercising the function of the council on appeal. It does not exercise the power of the corporation. Even though there is a very wide power to impose conditions the power of the council to impose any condition nominated by the corporation is limited to only those conditions that nevertheless fairly and reasonably relate to the proposed development and are for a purpose related to the RFI Act, Pyx Granite Co Ltd v Ministry of Housing and Local Government & Anor [1958] 1 QB 554; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208 and Fawcett Properties Ltd v Buckingham County Council [1961] AC 636.

58. The applicant concedes, quite correctly in the Court’s opinion, that the Duck River, the saltmarsh/wetland and the mangrove lined channel constitute “protected waters” within the meaning of s 22A of the RFI Act. The corporation, however, asks the Court to take cognisance of fill previously placed on the land which it says has had the effect of reducing the area of saltmarsh and mangroves as it was prior to the historical filling of the site. It asserts that the protected land includes that land which has been filled at any time, together with land that is not more than 40 metres from the top of the bank or shore of that land prior to the filling.

“protected land”

(a)

land that is the bank, shore or bed of protected waters, or

(b) land that is not more than 40 metres from the top of the bank or shore of protected waters (measured horizontally from the top of the bank or shore), or

(c) material at any time deposited, naturally or otherwise and whether or not in layers, on or under land referred to in paragraph (a) or (b).

60. Historical aerial photographs show that the saltmarsh and mangroves were far more extensive prior to the historical filling of the site. The second respondent contends that the protected land is not just that land which is 40 metres from the top of the bank or shore as it is now found, but rather it includes the land which has been filled at any time together with land that is not more than 40 metres from the top of the bank or shore of that land prior to the filling.

61. The catchment manager employed by the second respondent, Owen Graham, investigated the history of the land filling and land drainage on and around the site by examining aerial photographs. Half of the site was terrestrial grassland in 1930. Therefore, approximately half of the land was arguably under the influence of tidal flows and composed of saltmarshes. Progressive development has resulted in changes in location of drainage paths with each stage of land filling or building construction.

62. Professor Gerald C Nanson is a geomorphologist. His view is that the saltmarsh is part of the estuary of the Duck River and therefore in geomorphological and practical terms, part of Duck River.

63. Peter Stanton Roy is a marine geologist who was requested by the second respondent to describe the physical nature of the wetland and to document changes that have occurred over geological and historical time scales. He concludes that much, if not all, of the site occupies land reclaimed from wetland in the second half of the twentieth century. It is a saline wetland colonised by salt tolerant vegetation that geologically and geomorphologically forms part of the Duck River “proto- estuary”.

64. The mangrove lined channel he says was dug some time between 1951 and 1965. He regards it as a human-made extension of the Derby Street wetland and is connected to the Duck River estuary.

65. If the corporation is correct in its above contention then it claims that the sewerage installation, stormwater drainage, roads and associated drainage, inter allotment drainage, utility installation, electricity installation and the placing and grading of fill would all necessarily involve excavation on protected land.

66. The applicant accepts that part of the site includes protected land as defined, but it is submitted on its behalf that the extent of the protected land is confined to that land which is 40 metres from the top of the bank or shore as now found at the edge of the rubble wall on the southern boundary of the wetland or from the top of the bank of the Duck River. According to the applicant, because the definition of protected land speaks in the present, not the past, it does not include land which has been filled at any time. The reference to material at any time deposited naturally or otherwise in par (c) of the definition refers back to land which is currently within par (a) and (b).

67. If the applicant is correct then the only relevant work to which s 22B(1) of the RFI Act could apply is excavation required within 40 metres from the top of the existing bank to the river and the wetland for stormwater drainage and possibly sewage installation. Accordingly, the applicant claims that the provision of a vegetated setback to the extent sought by the corporation has no nexus to any of the works that require a permit pursuant to s 22B(1).

68. On the other hand, the corporation says the setbacks have a clear nexus to the proposed works because they seek to control the placement of further fill adjacent to the river bank, the wetland and the artificial channel. Furthermore, they are said to take account of fill placed on protected land in breach of Pt 3A following grant of an earlier development consent, No 503/98. Finally, the setbacks are claimed to provide a more appropriate physical transition between the fill and the protected waters to facilitate protection of the Duck River and the wetlands and the channel environment.

69. As the placement of fill in the areas proposed does not fall within any of the subparagraphs of s 22B(1), the applicant submits that there can be no nexus between the placing of that fill and the provision of the setbacks.

70. Moreover, there is no evidence to suggest that the proposed setbacks are required to avoid the obstruction of the flow of protected water even though the attributed purpose of part of the fill is to avoid the consequences of a one in 100 year flood event.

71. The applicant says further that the purpose of the setbacks to be deduced from the evidence of the corporation, and to a lesser extent the council, is for the enhancement of ecosystems, the creation of new habitats, an increase in biodiversity, an increased connectivity of habitat and the creation of new ecosystems. This opportunity to enhance biodiversity by mandating the proposed riparian zones does not, so the applicant says, fall within any purpose of seeking a permit under the RFI Act.

72. It is apparent, therefore, that there is a serious challenge to the power of the Court to impose conditions requiring a buffer or riparian zone at the behest of the corporation pursuant to a notification made to the council or to the Court as consent authority.

73. The corporation partly relies on findings by Sheahan J in his decision published on 18 April 2000, [2000] NSWLEC 76 (when his Honour granted interlocutory relief) to ask the Court to recognise the placing of existing fill on the land following the issue of development consent No 503/98 by the council as a breach of Pt 3A of the RFI Act. Notwithstanding that his Honour went into unusual detail over 64 pages, in what, as I have said, is an interlocutory judgment, the Court cannot on that account alone deduce that there has been such a breach. The activity of filling the land in consequence of the earlier development consent is effective until this Court makes an order pursuant to s 123 and 124 of the EP&A Act (see judgment of McHugh JA in F Hannan Pty Ltd v Electricity Commission of New South Wales(No. 3) (1985) 66 LGRA 306).

74. Even so, the remedy of such a breach is not a matter which arises in connection with the purpose of seeking approval under Pt 3A of the RFI Act. It is the effect and consequence of what is now proposed that is relevant for the purpose of Pt 3A. Any filling of the land which is the subject of the present application is only that which is required in addition to what is already on the land ( Hooper and Anor v Lucas & Ors (1990) 71 LGRA 27).

75. The applicant demonstrates the thrust of its argument by submitting that if DLWC as a government authority wishes to achieve the goals and objectives designated for the buffer zones then the appropriate procedure is to compulsorily acquire the land or have it rezoned to accommodate the public purpose.

76. Furthermore, if the corporation is seeking to make up for the lost opportunity to impose conditions pursuant to a development consent granted at an earlier stage of the development of this land where the earlier development consent, up to this point, has not been declared unlawful, and therefore must be regarded as valid, then according to the applicant that would be beyond the function of the Court in assessing and determining the present development application. The applicant, therefore, asserts that the corporation must establish that the need for the proposed setbacks or riparian zones is generated by the proposed development in the sense that the environmental impact or effect thereof requires that provision in order for those impacts or effects to be mitigated. The remedy of past wrongs, if there are any, lies elsewhere. The interlocutory judgment by Sheahan J, notwithstanding its detail, is no basis for a finding of illegality even if that issue could be shown to be a relevant matter for consideration on the determination of the present development application.

77. Finally, in the present context the Court notes that s 39(6A) of the Court Act has effect and frees the Court from the constraints imposed upon a consent authority under s 91A of the EP&A Act.

Whether the proposed development is designated development as a waste management facility or works within the meaning of Sch 3 to the EP&A Regulation

78. The corporation relies on the definition of waste management facilities or works included in Sch 3 of the EP&A Regulation on the basis that 68,085 tonnes of clean fill has been or will be placed on the land with at least a further 9,000 tonnes of fill yet to be placed on the land if the subject development application is approved. It says that once this filling is finished in accordance with any approval given by the Court, 77,085 tonnes of fill will have been placed on the site in addition to the importation and placing of 56,520 tonnes of clean fill which was approved by council pursuant to an earlier development consent No 161/98.

79. Predictably the applicant’s response is that the placing of 5,000 cubic metres (9,000 tonnes) of fill on the land pursuant to the subject application, even though it may fall within the definition of waste and even if it is located within 100 metres of a natural water body or wetland, cannot be for the purpose of a waste management facility or waste management works where the purpose of the proposed filling is part of and necessary for the preparation of the land for subdivision and ultimate industrial use.

80. The Court agrees with the applicant.

81. The only filling which the Court is prepared to accept as relevant for the purposes of the present development application is the introduction of 9,000 tonnes or 5,000 cubic metres of clean fill.

82. The EP&A Regulation refers to development as designated development by enumerating a number of purposes or types of development to be categorised as designated development. It is now well established that the task of classification or characterisation of development involves questions of fact and degree ( Penrith City Council v Waste Management Authority and Anor (1990) 71 LGRA 376; Foodbarn Pty Ltd & Ors v Solicitor-General (1975) 32 LGRA 157 and CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270).

83. The present development does not support a finding of a dual or double characterisation as referred to by Hope JA in Colo at 272 nor is this a case where the character, extent and other features of the proposed development support a finding that ignores the ultimate purpose of subdivision and justifies the identification of a purpose based upon the acts involved in carrying on the particular activity of filling the land. Reference to the particular acts of filling as proposed does not lead to the conclusion that the acts themselves constitute a separate and distinct use of the land ( Penrith City Council v Waste Management Authority and Anor (1990) 71 LGRA 376; Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404).

84. Moreover, the Court is satisfied that the filling proposed by the present development application is subordinate to the development of the subdivision which must be regarded as the dominant purpose.

85. The Court is not satisfied that the development should be relevantly regarded as designated development.

86. Furthermore, the evidentiary threshold test that there will be more than 100,000 tonnes of fill has not been satisfied.

87. The corporation sought to bring in aid Pt 2 of Sch 3 of the EP&A Regulation as relevant to the question of whether or not the proposed work is or is not designated development. It has not been shown that the additional fill is an alteration or addition to designated development which has been already carried out or will be carried out on the land. Even if it has, there is no evidence to support any contention that such alterations or additions by the introduction of 9,000 tonnes of further fill will significantly increase the environmental impact of the total development compared with the existing or approved development. In any event, it has not been shown that any existing or proposed approved development has been relevantly shown to be designated development.

88. Accordingly, no environmental impact statement is required on account of the proposed development being characterised as designated development.

Whether a grant of development consent would be in breach of s 80(2) of the EP&A Act

89. Section 80(2) of the EP&A Act provides that the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of the Act, an environmental planning instrument, or the regulations, whether arising or in relation to that or any other development.

17.

A 20 metre setback zone is to be provided between the fence and development to assist in protecting the wetland/mangrove area.

91. Subsequently, an application to modify the consent by the deletion of condition 17 was lodged with council. This application has never been determined.

92. In the meantime, development application No 503/98 for the subdivision of the subject land into 27 Torrens title lots and one residual lot was determined by the council on 21 April 1999. This consent has been acted upon although it is currently restrained by the interlocutory orders made by Sheahan J.

93. The lodgment of DA 503/98 appears to have subsumed the application made to modify DA 161/98.

94. A peripheral argument developed in the course of the hearing regarding the proposal to provide public access by way of a cycleway within the setback area. Ultimately this argument was not pursued to any great extent because the applicant concedes that provided the cycleway is contained within the riparian zone which it proposes then it has no objection to its provision, even though it says there are compelling arguments as to why it should not be provided on the merits. The merits arguments include that there is no utility in providing a cycleway when there is no connection to other like facilities within the locality and secondly, whether the use of the riparian zone by members of the public in that way would disturb migratory birds using the wetland.

95. The applicant relies upon the decision of Bignold J in Rutland in order to assert that to grant consent to the filling of land and subdivision contrary to the conditions of the prior consent would be a breach of the Act prescribed by s 80(2).

96. The submission in relation to the application of s 80(2) is to be distinguished from the argument which seeks to justify the imposition of conditions in respect of buffer zones and an access way for cyclists and pedestrians on the basis that earlier development consents imposed the same or similar requirements (see John Bruce and Partners Pty Ltd v Willoughby Municipal Council (1987) 64 LGRA 67 and Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236). In these cases Bignold J treated the conditions of earlier development consents as relevant to the circumstances of the case in further later applications for consent whereby the owner sought to negate the earlier conditions.

97. In Rutland his Honour embraces the concept of a condition having a continuing effect. An earlier subdivision had created two lots subject to a condition that the land not be further subdivided. The proposed future subdivision of one of the original lots would have involved a direct contravention of the condition in the earlier consent. Bignold J held that the further subdivision would result in a breach of the Act. It is clear that his Honour based his decision upon the ongoing affect on the second lot created by the first subdivision. The area of the second lot was less than the minimum area standard of 40 hectares specified in the LEP. It had been created pursuant to the exercise of a discretion under SEPP 1. The land in the second lot was not the subject of the second development application. Properly understood his Honour relied upon the particular facts in Rutland. He noted that the very legal existence of the subject land (and the second lot created in the same subdivision) depended upon the development consent which itself was predicated upon the stipulation that the land be not further subdivided. The further subdivision of the subject land would have produced the result that the second original lot created by the first subdivision would continue to exist notwithstanding that the legal basis for its creation pursuant to the exercise of the discretion under SEPP 1 had been removed. In the circumstances Bignold J concluded that it was because of the ongoing effect of the condition that the obtaining of a fresh development consent did not constitute an independent chapter in the planning history of the land. As the area of the second lot was less than the development standard his Honour found the further subdivision would have resulted in a contravention of the provisions of the relevant environmental planning instrument. Such a result was expressly contemplated by s 91(2) of the EP&A Act, as it then was, (its terms were identical to the present s 80(2)).

98. No such prospective result has been identified in the present case. The contradiction of a condition in an earlier consent by the granting of a further development consent does not, of itself, result in a contravention of the Act, an environmental planning instrument or the regulations.

Whether the application seeks retrospective approval

99. Here again, this matter was not raised in the statement of issues and the applicant objects to it being raised in the course of the hearing. It first appeared in the corporation’s written submissions.

100. The submissions appear to rely on the line of decisions in this Court typified by Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192; Connell v Armidale City Council (Pearlman J, NSWLEC, 25 September 1996, unreported) and Herbert v Warringah Council (1997) 98 LGERA 270.

101. In any event the applicant asserts that it is not seeking approval retrospectively to any work already carried out. The application is confined to that work described in the development application. That work is extant. On that basis the issue does not arise.

The nexus between the effect of the proposed development and the provision of a vegetated setback

102. The statement of environmental effects notes that the proposed development includes sewerage, stormwater and land filling works within 40 metres of Duck River, the wetland in the northern portion of the site, and the stormwater channel which forms the eastern site boundary.

103. The applicant contends that the only relevant work to which s 22B(1) of the RFI Act could apply is the excavation required within that area of 40 metres to provide for a swale stormwater drain and sewer installation and possibly some small excavation required for inter allotment drainage.

104. The applicant denies that the placing of fill falls within the provisions of the section. The second respondent, on the other hand, argues that the placing of fill below the one in 100 year flood level is work that obstructs the flow of protected waters or which is likely to do so and consequently is caught by s 22B(1)(c).

105. The second argument is that the vegetated riparian zones will serve to define the tradition between the fill and protected land and protected waters. Furthermore, the applicant proposes to provide hard stand parking along the Duck River within the protected land which the respondents oppose.

106. It is not now the second respondent’s case that the setbacks themselves are required to avoid obstruction to the flow of protected waters. The rationale appears to be that it is in some way incumbent upon the applicant to provide the appropriate transition from the development to the protected waters. In particular, to provide a sufficient vegetated riparian setback from the wetland to ensure a minimisation of disturbance of the bird species using the wetland.

107. The Court heard evidence from Associate Professor Paul Adam, a recognised expert in the field of Coastal Saltmarsh Ecology. Professor Adam was the only witness to give oral evidence.

108. Professor Adam notes that although the original saltmarshes along the Duck River were much more extensive, the remaining saltmarsh has retained its conservation values despite proximity to industry. In order to maintain the saltmarsh and its conservation values Professor Adam asserts that drainage from the site to be developed should not be discharged or directed into the marsh and that trampling or other physical disturbance to the marsh vegetation be prevented.

109. In his opinion buffers of 30 metres adjacent to Duck River and 5 metres along the southern margin of the saltmarsh and the eastern channel are, given the drainage plan for the site, adequate to protect the wetland vegetation and its values. He does not regard the presence of a transitional zone as essential to the viability of the remaining saltmarsh. He identifies a number of factors that militate against the provision of a saltmarsh-terrestrial vegetation transitional zone, the claimed benefits for which could be provided by alternative means.

110. He also notes that the majority of the literature suggests that corridors of the widths proposed would function poorly as wildlife corridors. They would be further compromised if they were also to provide for public access. He is concerned that any corridors will require continuing management of weeds and feral animals. If leaf litter or dead timber accumulate fire management may become an issue particularly given the proximity of buildings. Moreover, if public access is provided then the cycleway/walkway will require maintenance over the long term while vegetation management objectives may need to compromise between wildlife management goals and public safety.

111. Professor Adam was not prepared to endorse the suggestion by the second respondent’s witnesses that fill and rubble be removed along the saltmarsh boundary in the absence of detailed studies on the feasibility and possible impacts of these actions. Despite both features having been present for many years he says they do not appear to represent a threat to the health of the remaining saltmarsh.

112. While regretting the historical occurrence of the deposition of fill and the consequential loss of an area of saltmarsh, Professor Adam told the Court that the fill at present does not have continuing adverse impacts on the remaining saltmarsh whereas removal of the fill may pose significant risk. His recommendation is that the fill not be removed.

113. Even if some nexus could be established between the development and the requirement for a vegetated riparian zone along the edge of the saltmarsh the strongly held opinions of Professor Adam are persuasive in terms of the preferred course as it relates to the maintenance of the saltmarsh in its present condition. In cross-examination Professor Adam was challenged to change his expressed view in the light of the evidence by the second respondent’s witnesses and positions taken by him in previously published literature. He was not persuaded to do so. The general thrust of his evidence remains intact and is accepted by the Court.

114. The question of the impact upon the saltmarsh as a habitat for endangered bird species is a matter which is not directly within the expertise of Professor Adam. However, Professor Adam believes that in order for the riparian zone to effectively function as a wildlife corridor it would need to be considerably wider than that proposed by the second respondent. That opinion is shared by witnesses called by the respondents who refer to the optimum width as being something well in excess of 30 metres. The 30 metre proposal by the second respondent appears to be in itself a compromise unsupported on a factual basis.

115. Finally, Professor Adam does not agree with the assertion that freshwater is a requirement for plants to live and thrive. Plants which inhabit saltmarshes (halophytes) have a variety of physiological and biochemical adaptations which permit growth at high salinity. Although most halophytes require a brief period of low salinity for germination and establishment Professor Adam points out that this can be provided adequately by rainfall events. In his opinion the reduction of the amount of freshwater reaching the saltmarsh as a consequence of the proposed development is an improvement on the previous regime. Lower inputs will maintain environmental conditions appropriate to this type of marsh and possibly reduce the rate of mangrove invasion.

116. Geoffrey Richard Sainty is a wetland specialist who gave evidence on behalf of the second respondent. He has been actively involved in the practical rehabilitation and construction of wetlands including saltmarshes. He supports the view that saltmarsh wetlands can benefit from wide, appropriate, well-vegetated riparian strips. Mr Sainty identifies sediment deposition, changes to the flushing and exchange of water, water quality control, encroachment of weeds and other inappropriate vegetation including mangroves and the continuing interaction between animals and birds as important issues for the long term viability of the saltmarsh. In Mr Sainty’s opinion it would be beneficial to the saltmarsh to remove existing deposited sediment and a large fill area while the saltmarsh would be enhanced by a natural vegetated buffer zone involving removal of the rubble wall along the southern boundary of the saltmarsh, a 4 percent slope from the tidal inundated zone with a planting of low growing shrubs and terrestrial riparian vegetation backed by tall trees forming a buffer between the development and the saltmarsh.

117. Mr Sainty identifies the optimum width of a setback as being between 50 and 100 metres, or more. He sees the 30 metre buffer as a source of freshwater for the saltmarsh although he recognises that the benefit of freshwater to a saltmarsh is not fully understood.

118. Geraldine Dalby-Ball specialises in flora and fauna studies. She identifies the benefits of riparian zones as providing habitat value, corridors for the movement of flora and fauna, stopover areas for migratory species, reduction of soil erosion, improving water quality and mitigating the impact of surface water flows. Despite the small size of the remaining saltmarsh she says it still has valuable habitat as a stopover point for migratory birds, a diversity of which together with some terrestrial birds have been recorded in the vicinity of the site. She also provides a comprehensive list of fauna that could benefit from the establishment of a sufficiently wide, structurally and floristically diverse, riparian zone on the site.

119. In her recommendations to the Court, Ms Dalby-Ball reflects an aim to establish vegetated riparian zones along the Duck River to enhance connectivity between areas of core habitat and remnant endangered ecological communities. A minimum width of 50 metres is suggested with a compromise on width to a minimum of 30 metres as a recognition of the economic value of the site. She refers only incidentally to the prospect that the proposed development will have any impact upon the mangroves along the Duck River and the constructed channel or the saltmarsh.

120. In defence of her position Ms Dalby-Ball reiterates that further proposed riparian zones along the Duck River are part of a long term habitat reinstatement plan. The problems identified by her for the long term survival of the saltmarsh appear to be more closely related to degradation that has already occurred.

121. Conversely to the second respondent’s witnesses, Dr Eleni Taylor-Wood, who has expertise in freshwater, estuarine and marine ecology, and Dr Charles W Meredith, who has 15 years experience in applied conservation biology and consulting, conclude in a joint report that while vegetated buffer strips reduce sediment and pollutant delivery they should be viewed as a secondary conservation practice to be used in conjunction with other on site management strategies that reduce erosion, sediment transport and runoff, such as the swale drain and stormwater management system proposed for the site. In their opinion the restored riparian buffer proposed by the second respondent would have low wildlife habitat value. Species are unlikely to reach it and even if they did it would be too small for their needs. In their joint opinion the saltmarsh community is in very good condition with relatively little surface disturbance and few weeds. A narrow riparian zone buffer with no public access would be an effective protection from human interference. They discount the prospect of noise disturbance as being important for waders or for most bird species.

122. Finally, they say wildlife corridors are only useful if they actually connect between habitat areas, they are ecologically functional and there are species present that would use them. The proposed riparian zone at Silverwater would merely form a small and isolated habitat fragment. They would therefore have low wildlife habitat value for the reasons mentioned above. They generally agree with the position taken by Professor Adam in so far as it relates to the evidence of Mr Sainty and Ms Dalby-Ball. They take strong issue with the evidence of Ms Dalby-Ball in particular, which they say has little relevance to the actual conditions as they exist on the site.

123. Dr Taylor-Wood concludes that mangroves growing along the Duck River all appear to be in good health. She does not expect there will be any changes as a result of the development. Noting that the channel along the eastern boundary is an artificial stormwater channel she finds it unlikely that any further sediment will be released into this channel as a consequence of the stormwater management plan proposed by the applicant. She does not expect that building on the subject site would have a deleterious effect on mangroves in the mangrove lined channel.

124. Mr Straw, consultant ecologist, has provided the Court with a detailed description of bird life associated with the Duck River and its environs and the benefits of a vegetated riparian zone for the bird life in the area. His evidence is based upon an assumption that migratory waders and, in particular, seven species including threatened species, either use the site or are likely to use the site. As Dr Meredith and Dr Taylor-Wood point out, Mr Straw refers in his evidence to birds recorded in the “locality” whereas only small numbers of a few species of bird have ever been recorded on the site itself. While Drs Meredith and Taylor-Wood agree there would be some bird use of the site, it appears unlikely to be at significant levels as the subject site is small and the habitats in it are not generally rich in bird life.

125. On the other hand, Dr Richard Kingsford, a principal research scientist with the National Parks and Wildlife Service says that the lack of observations of waterbirds at the subject site only means that they are likely to have been in the northern hemisphere at the time of inspection. In response to this observation Drs Meredith and Taylor Wood again remind the Court that only a few individuals of a few bird species have ever been recorded on the site. Recognising that there is a chance that birds might be found on the site from time to time it is in their opinion highly unlikely that they actually would use the site in any regular way or that the site would constitute a habitat of ecological importance for more than a very small number of birds in the area.

126. The evidence of Dr Kingsford is, like Mr Straw, very helpful only in the context of understanding the potential for water birds to be in the area in the wider and more general sense. There is divergence of opinion between all of the experts as to the extent to which birds who actually use the saltmarsh or the areas along the Duck River will be disturbed by noise, lights and other human activity.

127. In contrast to a number of the second respondent’s witnesses, Drs Meredith and Taylor-Wood believe that work to remove the rubble wall along the edge of the saltmarsh would cause considerable unavoidable damage to the saltmarsh. In their opinion the rubble layer is currently helping to protect the saltmarsh from sediment.

128. The Court is able to readily recognise that the saltmarsh is an important ecological site. However, the issue remains whether the proposed development by the applicant is likely to have an adverse impact on the saltmarsh or the species that use it as a habitat.

129. Ian Drinnan, senior environmental scientist employed by Sutherland Shire Council gave evidence as a consultant to the first respondent. He referred to A Vegetation Management Plan for the Sydney Region (1997) which identified the area of the Duck River subject to the proceedings as an important corridor to be restored within the management strategy to mitigate against impacts of fragmentation. Without identifying any particular species as using the site, Mr Drinnan identified a threshold in corridor width of 30 metres, below which the corridor will fail to provide for a range of fragmentation sensitive or forest dependant species. As suitable sized habitat exists to encompass the home range sizes for the species to the north and south of the site, he concludes that the significance of the corridor therefore goes well beyond the site boundaries.

130. However, he does refer to literature where riparian zones have been identified as important areas to mitigate against the adverse impacts of the development. He says the provision of adequate riparian buffers of at least 30 metres in width will serve to mitigate and assimilate pollutants resulting in improved streamwater quality. His concern to maintain a buffer between the proposed development and the riparian environments adjacent to the subject premises arises as a result of the inadequate buffers that currently exist. He expresses a concern that the proposed provision of a 15 metre landscaped area between the proposed development and the Duck River is inadequate in that it does not provide for an effective wildlife corridor, does not provide an adequate buffer between the development and the environment of the Duck River and does not provide for the establishment of a viable riparian ecosystem. Finally, he feels that the provision of the buffers as recommended by the respondents will serve to minimise and contain impacts from development by reducing ongoing maintenance requirements and providing more assurance to the successful management of the wetlands.

132. However, he disagrees with their subsequent assessment that the proposed wildlife corridor fails on all three points. Drs Meredith and Taylor-Wood voice the opinion that the development proposal for the site is more likely to enhance the site through protection of the mangrove/saltmarsh communities, the removal of weed species and the use of stormwater management techniques and buffers. Although there may well be merit in the objective to make a connection between significant habitats, no criteria has been set by the respondents to relate this need to any impact or demand created by the development.

133. Although not possessing any academic qualifications in the field, Dr Clive Minton has been actively involved in fieldwork on waders in both Australia and overseas. The study of birds has been the principal extramural activity throughout his life. As the only feature of the saltmarsh that might possibly be used by waders is fenced about 30 metres from the edge of the future building line of the industrial development, Dr Minton says that in his experience it is a satisfactory distance from the structures and activities not to deter any small/medium sized waders wishing to use the site. He cannot see any strength in arguments to create a buffer zone around the proposed development for the benefit of wading birds given their minimal use of the area.

134. An inspection on 2 October 2000 confirmed for him the unsuitability and unattractiveness of the site as a location of any significance for migratory waders to feed or rest.

135. Richard James Turner and Graham Turner, who provided a joint statement of evidence on behalf of the applicant, claim extensive experience in wildlife surveys, particularly bird species. They consider the proposed development will have little impact on migratory waders using or potentially using the saltmarsh and mangrove areas of the site. Nine species that might feed in the saltmarsh were considered after which they concluded the imposition of a 30 metre setback on the northern boundary would have little, if any, beneficial effect on migratory waders. Because the development is not removing or modifying any wader habitat and as it utilises a pre-existing industrial site and is confined to the previous development footprint, it is their opinion the development will have little impact on migratory waders. The main effect of proposed buildings will be to screen human activity from the saltmarsh.

136. In their opinion any artificial addition to the remnant riparian zone that has been retained along the Duck River is only marginally likely to benefit water birds similar to the waterbirds that currently use the river as a landmark. They identify artificial planting as likely to benefit feral cats and dogs that can seek cover before and after preying on the birds that are foraging on mudflats and saltmarshes.

137. During their inspection they observed migratory waders in nearby wetlands but none at the Derby Street site. They observed birds using the line of the Duck River as a wildlife corridor. They also saw that migratory waders had become habituated to human activities to remain in the Parramatta River. It is their belief that creation of an artificial riparian zone will only benefit a few species of terrestrial birds and no migratory waders. They also note that there will be no greater disturbance arising from the proposal and it is contended that impacts will in fact be reduced. There is a prospect, in their opinion, that the area will become relatively more attractive to migratory waders as a result of the development.

138. The second respondent relies on evidence from Roger Lembit, an environmental consultant with particular expertise in flora surveys, vegetation and land management and conservation of rare or threatened plant species. His main concerns centred upon the impact of development by way of filling which has already occurred on the site.

139. He also emphasises that enhancement of connectivity and the promotion of the movement of certain flora and fauna species can be achieved with the rehabilitation of fully structured riparian zones.

140. He recognises that the establishment of a riparian zone would benefit the productivity and the overall health of the Duck River and Parramatta River. He endorses the proposal for a vegetated riparian zone of 30 metres along the boundary of the site adjoining the Duck River and the wetland but considers that the 5 metre wide vegetated riparian zone adjacent to the mangrove lined channel on the eastern boundary of the site is not sufficiently wide and recommends a 20 metre wide riparian zone on that boundary. His concerns are addressed in general terms and appear not to take into account the specifics of the proposed development. He speaks in terms of rehabilitation whereas what is proposed by the respondents is more in the nature of revegetation and landscaping, rather than rehabilitation.

141. Dr Surrey Jacobs is a botanist who also gave evidence on behalf of the second respondent. He makes what appears to be a valid point, that the prospect of weed invasion into the saltmarsh is unlikely. However, the proposed width of the zones is to allow weed management. Nevertheless, Dr Jacobs notes that the current condition of the vegetation on the banks of the Duck River is so bad in terms of weeds that even if management is not resolved the proposed buffer strips will be a substantial improvement on the current situation. He would prefer to see a 50 metre wide buffer strip along the river. Anything less than 30 metres would, in his view, compromise the main functions of the buffer.

142. In order to protect the saltmarsh itself from sediment Dr Jacobs says that some of the current fill needs to be removed to leave a very gentle vegetated slope with a porous surface. This slope needs to have both shrub and ground cover layers. Trees should not shade the area of concern. After discussions with Mr Straw and Dr Kingsford he says it appears that a buffer width of 30 metres could be adequate if tree planting was restricted to immediately next to the buildings. He agrees that runoff from the site must be intercepted before it reaches the saltmarsh although runoff from the buffer/wildlife strip can be allowed to reach the wetland as long as that strip is appropriately designed to allow water penetration, low surface flow velocity, retention of sediment and interception of nutrients. Ultimately, he says the 30 metre buffer zone/wildlife corridor requested is about the minimum likely to be effective at this site for the banks of the Duck River and the southern margin of the saltmarsh. The requested 5 metre zone along the mangrove lined channel is, in his opinion, inadequate to protect the mangroves already there and should be extended to 20 metres width downstream of the pipes.

143. Drs Meredith and Taylor-Wood disagree with the concept of removing some of the current fill to provide a gently vegetated slope as this would involve removal of the rubble layer which is currently helping to protect the saltmarsh from sediments.

144. Dr Jacobs’ concern about shading of the mangroves by buildings does not appear to be reflected at other sites inspected by the Court.

145. On balance the Court agrees with Professor Adam and the other experts relied upon by the applicant that the failure to provide a riparian zone as proposed by either respondent will not constitute a threat of serious or irreversible environmental damage to the saltmarsh as proposed by the second respondent’s witnesses. Certainly not as a consequence of the development proposed.

146. Moreover, the Court is persuaded that the opinion of Drs Meredith and Taylor-Wood that a narrow buffer abutting a warehouse wall will achieve a better insulation against human activities abutting the wetland than a wide buffer with public access as there will be little activity by people in such an area is on balance correct. Furthermore, the Court agrees with their conclusion that the stream structure and dynamics of the Duck River will not be altered through the use of stormwater management techniques and buffers along the river bank. The Court has not been convinced that it is necessary for the buffer along the Duck River to be wholly vegetated and that using part of the riparian zone as a hard stand for motor vehicles will not be detrimental to its function as a buffer. There is not likely to be any significant impact on the surrounding mangrove environment. The development will demonstratively improve on the current situation, as Drs Meredith and Taylor-Wood point out, through the provision of the proposed buffers and plantings and the improved control of stormwater flows off the site.

147. There is, nevertheless, the specific aspect of the stormwater issue outstanding in so far as it affects the Wilsonia found in the wetland. That issue has been dealt with separately.

148. Drs Meredith and Taylor-Wood point out that as well as the buffer functioning as a wildlife corridor, the majority of authors consider the buffer as a protective barrier against sediments, pollutants, excess nutrients, and poor water quality for the mangrove/saltmarsh communities and river. Account has to be taken of the works proposed as a management tool for stormwater runoff from the site. They recognise that in the absence of stormwater management techniques, wider strips or buffers may be needed to achieve the same objective as a narrow strip with stormwater management techniques in place.

149. The Court accepts that the buffers proposed by the applicant will ensure there will be no loss of existing habitats on the site and the buffering effect will be increased over that which presently prevails on the site. Drs Meredith and Taylor-Wood recognise the potential for increased stormwater flows off the site, but point out these are specifically addressed in the buffer and drainage designs and will therefore be appropriately managed in the future.

150. The proposal to provide a buffer of any sort is an added benefit or precaution to protect the saltmarsh from the prospect of impacts from the development.

151. Apart from the lately raised issue in respect of the Wilsonia, the development as proposed in the original development application is designed to address the question of drainage of stormwater into the saltmarsh and thereby ameliorate the prospect of environmental damage in that respect.

152. Although one of the criteria for determining nexus in the present context can be the actual location and nature of development proposed as the respondents’ claim, nevertheless, the object of an ameliorative or protective condition must also be shown to have a nexus with an impact of the development.

153. It has not been shown that threatened or endangered bird species use the saltmarsh to any extent, if at all. in other than a most peripheral way.

154. The Court has sufficient evidence before it to apply the eight part test in s 5A of the EP&A Act in respect of the likelihood of significant affect on threatened bird species. Each of the questions in s 5A(a) to (h), where they are relevant, are answered in the negative. Accordingly, no species impact statement is required in this respect.

155. Furthermore, the riparian zones or setbacks proposed by the applicant appear to the Court to be satisfactory and will achieve the purpose of a buffer as adequately as anything proposed by either of the respondents. The application of the principles of ecologically sustainable development and the precautionary principle in particular do not take the matter any further as the Court does not entertain any serious doubt that the applicant’s witness’ evidence should be accepted in most relevant respects and be given greater weight to the extent that they prevail.

The challenged conditions

156. The ambit of the amendments expanded beyond the cited conditions in the amended statement of issues filed 21 September 2000 as a consequence of the arguments developed by all parties in the course of the hearing.

157. Mr Clay, junior counsel appearing for the applicant, prepared a summary of the applicant’s objections to conditions in response to the draft conditions submitted on behalf of the respondents by Mr Robson, counsel appearing for the first respondent. Both documents were marked as exhibits. The second respondent has filed a document comprising consolidated general terms of approval.

158. It is convenient to deal with the proposed orders to be made in accordance with the Court’s decision by reference to the above documents. However, because of the prospect of an ultimate lack of precision as foreshadowed by Mr Clay, the parties will be required to bring in draft minutes of the final orders to be made.

Council Condition 13

159. This condition, relating to the submission of a landscape/riparian restoration plan, requires amendment, in the manner indicated by the applicant, to reflect the riparian zones proposed by the applicant and accepted by the Court.

Council Condition 14

160. The council seeks to place responsibility for management of the wetland upon the applicant in perpetuity. Yet the applicant has agreed to set this area aside from future use even to the extent of offering to dedicate the land to the first respondent. Until the council accepts the offer of dedication, which to date it has not, then the Court cannot require it. Nevertheless, the Court is prepared, with the applicant’s consent, to provide for the applicant to submit a Wetland Management Plan and for the wetland to be managed in accordance therewith for the next three years.

161. The condition drafted by the applicant is accepted subject to the limitation of five years in the draft document being varied to three years to match the terms of the offer made.

Council Condition 15

162. The Court is not satisfied that the applicant should be required to test the rubble wall for contamination and then to remove it. It is preferable as a precautionary measure, based on the evidence, that the area not be disturbed. Accordingly, condition 15 is deleted.

Council Condition 16

163. The applicant is prepared to carry out some restoration by landscaping the grassy knoll area although this has no discernible nexus with the proposed development.

164. By consent, therefore, condition 16 as redrafted by the applicant is imposed.

Council Condition 17

165. The Court is not satisfied that the imposition of easements for public access along the Duck River, saltmarsh and man-made channel frontages is justified. Prospectively, the adjacency of public activity to the saltmarsh may prove counter-productive to its use by any bird species. However, the applicant is prepared to provide an easement 3 metres wide adjacent to the Duck River and along the frontage to the saltmarsh provided they are included within the specified setbacks or riparian zones. This can be done if the council still insists notwithstanding the limitations demanded by the applicant.

166. The condition will need redrafting to accommodate the final result.

DLWC Condition 1

167. The applicant agrees to this condition provided minor amendments are made to better define the role of the corporation and a permit under Pt 3A of the RFI Act.

168. The Court agrees with the proposed amendments.

DLWC Condition 7

169. The Court does not require the removal of the rubble wall therefore this condition is deleted.

DLWC Condition 8

170. The Court is not satisfied either that the grassy knoll be removed or that the grade at the edges of the development be modified. Furthermore, there is no basis for requiring historical cross-sections. Nevertheless, the applicant is prepared to agree to a modified condition which requires preparation of representative cross-sections and detailed drawings of sediment and pollution control works and the proposed swale drain.

171. Condition 8 will be in the form proposed by the applicant.

DLWC Condition 9

172. This condition should be in the general terms drafted by the applicant following adoption of the riparian zones proposed by the applicant and rejection of the corporation’s alternative proposal in that respect.

DLWC Condition 10

173. The parties are generally in agreement with the form of this condition. The minor amendments proposed by the applicant are acceptable. The changes proposed reflect the actual depth of weed free soil.

DLWC Conditions 15, 16 and 17

174. These conditions will be amended in the manner proposed by the applicant to adopt the riparian zone widths accepted by the Court.

DLWC Conditions 20 and 29

175. These conditions will be in the form proposed by the applicant so as to connect the proposal for a bond or guarantee to the actual cost of establishing and maintaining the riparian zones.

DLWC Conditions 30 to 74

176. The scenarios upon which these conditions are predicated are not accepted. It is therefore appropriate for each of these conditions to be deleted.

Orders

1. The parties are directed to bring in draft minutes of orders to reflect the Court’s decision.

2. The matter may be re-listed by any party on 2 days notice for the purpose of settling the orders.

Actions

Download as PDF Download as Word Document

Citations

Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60

Most Recent Citation

Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79

Cases Citing This Decision

9

Kirela Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2005] NSWCA 108

XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1607

David Goode v Gwydir Shire Council [2020] NSWLEC 33

Cases Cited

4

Statutory Material Cited

5

Donnelly v Delta Gold Pty Ltd [2001] NSWLEC 55

Westport Marina Developments Pty Ltd v Concord Council [2000] NSWLEC 184

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42

CITATION:	Silverwater Estate Pty Ltd v Auburn Council and Another [2001] NSWLEC 60
PARTIES:	APPLICANT: Silverwater Estate Pty Ltd RESPONDENTS: Auburn Council and Another
FILE NUMBER(S):	10657 of 2000
CORAM:	Talbot J
KEY ISSUES:	Development Consent :- appeal against conditions requiring riparian buffer zones - whether designated development - ongoing effect of conditions of earlier development consent - whether SIS can be required where species declared endangered after grant of consent but prior to hearing of appeal limited to conditions - retrospective approval to fill already in place - force of an interlocutory judgment regarding alleged breach of another development consent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 5A, s 78A, s 79C, s 80(2), s 80A, s 82, s 83, s 91A, s 91, s 96 Environmental Planning and Assessment Regulation 1994 cl 52A, cl 53, Sch 3 Rivers and Foreshores Improvement Act 1948 s 22A, s 22B, Pt 3A Threatened Species Conservation Act 1995 Pt 6 Div 2, Sch 2 Land and Environment Court Act 1979 s 39(2), s 39(6A)
CASES CITED:	Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434; CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270; Connell v Armidale City Council (Pearlman J, NSWLEC, 25 September 1996, unreported); Donnelly v Delta Gold Pty Ltd and Ors [2001] NSWLEC 55; Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186; F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306; Fawcett Property Ltd v Buckingham CC [1961] AC 636; Foodbarn Pty Ltd & Ors v Solicitor-General (1975) 32 LGRA 157; Herbert v Warringah Council (1997) 98 LGERA 270; Hooper & Anor v Lucas & Ors (1990) 71 LGRA 27; John Bruce and Partners Pty Ltd v Willoughby Municipal Council (1987) 64 LGRA 67; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Penrith City Council v Waste Management Authority & Anor (1990) 71 LGRA 376; Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236; Pyx Granite Co Ltd v Ministry of Housing and Local Government & Anor [1958] 1 QB 554; Rutland v Shoalhaven City Council (1997) 94 LGERA 370; Steelbond (Sydney) Pty Ltd v Marrickville Council (1994) 82 LGERA 192; Swadling & Anor v Sutherland Shire Council & Ors (1994) 82 LGERA 431; Water Administration Ministerial Corporation v Auburn Council & Ors [2000] NSWLEC 76; Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451
DATES OF HEARING:	5/10/2000, 6/10/2000, 9/10/2000, 10/10/2000, 11/10/2000, 18/10/2000, 30/10/2000, 31/10/2000, 1/11/2000, 2/11/2000, 3/11/2000, 14/11/2000, 13/02/2001, 26/03/2001
DATE OF JUDGMENT:	04/04/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr M H Tobias QC with Mr P R Clay (Barrister) SOLICITORS: Blake Dawson Waldron FIRST RESPONDENT: Mr J E Robson (Barrister) SOLICITORS: Abbott Tout SECOND RESPONDENT: Mr P C Tomasetti (Barrister) with Mr M Fraser (Barrister) SOLICITORS: Department of Land and Water Conservation