St Ives Bus Services Limited v Ku-ring-gai Council
[1995] NSWLEC 189
•15 November 1995
Land and Environment Court of New South Wales
| Record of hearing |
JudgeLloyd AJ
Number10368 of 1995
PartiesApplicant St Ives Bus Services Pty Limited
RespondentKu-ring-gai Council
Key issues· Bus depot and associated facilities - remote site adjoining national park and driver training school - access through driver training school - traffic - erosion and stormwater control - noise - flora and fauna - visual impact.
Statutes· Environmental Planning and Assessment Act 1979, s 90(1)
·Ku-ring-gai Local Environmental Plan 105
·State Environmental Planning Policy 11 (Traffic Generating Developments)
·State Environmental Planning Policy 19 (Bushland in Urban Areas)
·State Environmental Planning Policy 44 (Koala Habitat
Protection)
Hearing dates 23-27, 30, 31 October, 1-3 November 1995
JudgmentReserved
Date of judgment 15 November 1995
Appearances Applicant Mr M G Craig QC and Miss S A Duggan
RespondentMr N A Hemmings QC (Solicitor)
SolicitorsApplicant Miller Noyce
Respondent Pike Pike & Fenwick
Number of pages 37
Summary of orders
·Appeal allowed
Contents Page No
The site and its environs 1
Relevant Statutory Controls 3
The Proposal and its History 4
The issues in the proceedings 5
The evidence 6
Community and Residents' concerns 6
Operations of the Proposed Bus Depot 6
Planning matters 7
Traffic 9
Impact on the Driver Training and CARES Site (Lot 2845) 11
Impact on National Park 13
Noise 15
Flora and fauna 18
Conclusions 19
Orders25
IN THE LAND AND 10368 of 1995
ENVIRONMENT COURT Lloyd AJ
OF NEW SOUTH WALES 15 November 1995
ST IVES BUS SERVICES LIMITED
Applicant
v
KU-RING-GAI COUNCIL
Respondent
JUDGMENT
This is an appeal against the refusal by Ku-ring-gai Council (the Council) of a development application for a bus depot, associated activities and an access road on lots 2842 and 2844 in DP 822242, known as No 445 Mona Vale Road, St Ives.
I heard this appeal between 23 October and 3 November 1995 with Dr J Roseth, a conciliation and technical assessor of the Court, whose assistance both during the hearing and in the preparation of this Judgment is gratefully acknowledged.
The Site and its Environs
The site is on the southern side of Mona Vale Road, between St Ives and Terrey Hills. Mona Vale Road is a major traffic artery which carries more than 30,000 vehicles per day. On the northern side of the road, directly opposite the site is the St Ives Showground, to the west are the Ku-ring-gai Wildflower Gardens.
The site is the result of the subdivision, in DP 822242, of the former police driver training site into 4 allotments:
lot 2842 (the subject site)
lot 2843 (the former police dog training site, now unused),
lot 2844 (the access site) and
lot 2845 (the driver training/CARES site).
The site consists of two allotments: the main site which is lot 2842 and the access site, which is lot 2844. The main portion of the site is 2.4 ha while the access site is 0.32 ha.
The site is Crown land, administered by the Department of Land and Water Conservation which has leased lots 2844 and 2845 to the Council. The Council has in turn subleased the lots to Driver Training Australia, a private organisation which provides advanced driver education. A road safety education program for children, called CARES, is also carried out on part of lot 2845. One of the site's peculiarities is that the access site, lot 2844, bisects the driver training/CARES site, lot 2845.
Apart from lot 2845, the subject site adjoins two other areas: Garigal National Park to the south-west and a site, lot 2753, leased to the council by the Department of Land and Water Conservation, which was used until recently as a tree loppings tip and a recycling depot. These uses have now ceased and the council is seeking to have lot 2753 added to Garigal National Park.
The subject site was once used by the Police for four-wheel driver training. It is now covered by native, somewhat disturbed vegetation.
2
Relevant Statutory Controls
·Ku-ring-gai Local Environmental Plan 105 (LEP 105) which zones the site Special Uses A1 and permits, among other uses, bus depots.
•State Environmental Planning Policy 11 (SEPP 11) which requires this application to be referred to the Roads and Traffic Authority (RTA) for comment. Council had referred the application to the RTA which advised the council to refuse the application on traffic grounds.
•State Environmental Planning Policy 19 (SEPP 19) which aims to protect urban bushland. Clause 9 applies to development on land adjacent to bushland on public reserves and is relevant to this application. It requires a consent authority, when considering an application for development on such land, to take into account the need to retain bushland and the effect of development on the bushland, in particular through the erosion of soils, the siltation of streams and the spread of weeds and exotic plants.
•State Environmental Planning Policy 44 (SEPP 44) which aims to protect koala habitats. Clause 7 requires a consent authority, when considering an application for development, to satisfy itself whether or not the site is a potential koala habitat. The Policy defines potential koala habitats as areas of native vegetation where koala feed trees constitute at least 15% of the total number of trees in the upper or lower strata of the tree component. Where a consent authority finds that the site is a potential koala habitat, clause 8 requires it to satisfy itself, on evidence presented to it by a person experienced in biological science and fauna survey, whether or not the site is a core koala habitat. The Policy defines core koala habitat as an area with a resident population of koalas, evidenced by breeding females, recent sightings or historical records.
The Proposal and its History
The proposal is to establish a bus depot for 38 buses, associated storage and maintenance areas, a manoeuvring area, employees' accommodation, a covered fuelling location, a bus wash bay, a caretaker's residence and parking for 48 cars. Access to the site is by a 7.5 m wide road constructed on the access lot (lot 2844). The proposal includes an area of undisturbed bushland near the western boundary with the National Park, the retention of a stand of Eucalyptus capitellata or Brown Stringybark near the south-eastern corner. A water quality control pond which acts also as a sedimentation basin is provided.
The applicant lodged the development application in December 1994. Following advertisement, council received a large number of objections from residents of North St Ives. In May 1995 the applicant lodged an appeal against deemed refusal. In June 1995 Council refused the application on grounds which may be summarised as follows:
•The proposal interferes with the safety of traffic flow on Mona Vale Road.
•The proposal disrupts the internal vehicular movements of the driver training facility and the CARES program on the site adjoining to the north.
•The treatment and disposal of stormwater is unsatisfactory.
•The proposal will spoil bushland views from residential areas to the south.
•There is inadequate information to satisfy council that noise from the bus depot will not disturb the surrounding areas.
•There is inadequate information on water recycling and the removal of waste residues.
•The applicant has not adequately assessed the effect of the proposal on flora and fauna nor considered the site as a potential koala habitat.
•The proposed disposal of effluent on the site is unacceptable.
•The proposal will have an adverse effect the Upper Middle Harbour catchment which is listed on the interim national estate.
•The circumstances of the case and the public interest.
The Issues in the Proceedings
The Statement of Issues which the Council filed with the Court identified 10 matters, largely based on the grounds of its refusal of the development application. Issue 10 elaborated the grounds of “circumstances of the case and the public interest” by specifying 3 sub-issues, namely
the history of the site
the assessment of the site by CALM before the rezoning and
the manner in which the rezoning of the land was processed.
The applicant objected to these matters being raised on the grounds that they were irrelevant to the determination of the application.
Early in the proceedings I made a ruling that the site's history was relevant, but that the assessment of the land by CALM and the processing of the rezoning were neither relevant nor appropriate considerations. The starting point for the appeal is that a bus depot is a permissible use on the site. How the zoning came about is of no moment.
The remaining issues were debated and refined during the hearing as follows:
•whether turning into and out of the site compromises the safety of traffic on Mona Vale Road;
•whether the impact on the driver training/CARES operation on the northern adjoining site is acceptable;
•whether the proposal satisfies the requirements of SEPP 19 in relation to its impact on the adjoining Garigal National Park;
•whether the noise impact of the proposal is acceptable;
•whether the visual impact of the proposal is acceptable;
·whether the proposal has an effect on any rare or threatened Australian plants or regionally significant vegetation;
•whether the proposal has an effect on endangered fauna, in particular whether the site is a koala habitat and whether the requirements of SEPP 44 are satisfied.
The Evidence
Community and Residents' Concerns
Mr J Burke, a representative of STEP Inc (a community based environmental conservation group) and Mr T. Martire a representative of the St Ives Progress Association, gave evidence. The Union of Lane Cove Valley Conservationists tendered a written statement. In addition, the following residents of North St Ives gave evidence: Mr E Bell
Mr I Grimmond
Ms C Lavers
Ms L Luscombe
Mr D Smith
Mr J Watts and
Mrs T Whitmore.
The main concerns of community groups and residents were with the effect of the proposal on the quality of bushland in the National Park, noise disturbance from the use of the bus depot and the appearance of the development from the National Park and residential areas to the south. In relation to noise, a number of the residents said that, when the tip site was operating, they could clearly hear noise from it. They are also disturbed by noises from the Showground and from the shooting range which are further removed from them than the subject site. As a result they feared that they would be disturbed by the operations of the bus depot.
Operations of the Proposed Bus Depot
Mr A Hibble, joint managing director of the St Ives Bus Service, gave evidence.
He said that his company has operated in the St Ives area for about fifteen years, connecting residents to Pymble and Gordon stations. The company also provides school buses to schools in Hornsby, Asquith, Lane Cove and North Sydney as well as charter buses to progress associations, church groups and the like. The use of the bus depot is between 5.15 am and 9.45 pm on weekdays, between 6 am and 8 pm on Saturdays and between 7.30 am and 6.15 pm on Sundays. There will not be any panel beating or spray painting in the proposed depot. The company now has 25 buses, all under 12 m in length and will not be using larger ones.
The main reason for the company's wish to move from its existing location near the junction of the Pacific Highway and Mona Vale Road is that the grade separated interchange now makes the movements into and out of the depot difficult.
In cross examination Mr Hibble agreed that he has been looking for alternative sites since the 1980s. He has not found another suitable site. He did not agree that the motive for wanting to move to a new site was to profit by the sale of the existing premises. He acknowledged that his company may in the future take over another bus company.
Planning Matters
Mr R Starr, senior town planner with the Council, gave evidence, the thrust of which was to endorse the council's grounds of refusal of the application by reference to expert reports on planning, stormwater disposal, sewerage, effect on flora and fauna, traffic and noise. In addition, Mr Starr made the following points:
•The Crown subdivision which created the subject site and the access arrangement through lot 2844 is inappropriate.
•The proposal has an adverse impact on the driver training/CARES activities on lot 2845. The development applications for these activities preceded the application for a bus depot.
•There is no record of RTA approval for the access road through lot 2844 or its intersection with Mona Vale Road.
•The tree loppings tip site which adjoins the subject site to the south is not in any active use. It is being rehabilitated under a management plan. Council seeks to transfer it to the National Park.
•The information provided in the application in relation to sewerage, drainage, traffic and noise was inadequate.
In cross examination Mr Starr acknowledged that the National Parks and Wildlife Service have given notice to Council that the existing informal access through the National Park to the tree loppings tip site will not be allowed, and that lot 2844 may be needed to give access to the site. He agreed that there was no certainty that the Department of Land and Water Conservation will agree to the site being transferred to the National Park. In relation to the conflict between the access to lot 2842 and the driver training facility, Mr Starr agreed that he has always been aware of the need for joint access. He said that the council had not taken any steps towards an alternative access to lot 2842. To a question from the Court whether he knew of a more suitable site for a bus depot, he said that he did not think there is likely to be such a site in the St Ives area.
Mr M Keogh, an environmental planner retained by the council, gave evidence, the thrust of which was that the site was inappropriate for a bus depot.
Mr T Byrnes, a consultant planner retained by the applicant, made the following points in his evidence:
•The site is suitable for a bus depot, because it is remote from residential areas and isolated visually and acoustically from them. It is also large, thus allowing low site coverage and a high proportion of landscaping. The western part of the site, which adjoins the National Park, has been left undisturbed.
•The visual impact of the development will be low key. The topography will hide it from residential areas to the west, while from the south only the upper part of the walls and the roof will be visible.
In cross examination Mr Byrnes acknowledged that he has been involved with the bus company's search for a new site since 1989. He had prepared a master plan for the area which recommended that it be used for a bus depot and noisy recreational activities. In his view there are no suitable alternative sites for a bus depot within reasonable distance of St Ives. He agreed that the access through lot 2844 presented problems; however, given the subdivision, he thought the bus company had no alternative but to accept it and make the best of it.
Traffic
Mr J Haynes, a traffic engineer retained by the council, gave evidence which included the following points:
•There are significant operational and safety problems associated with the proposal. Buses and other heavy vehicles will slow on grades approaching the site and will need a 10 second gap in traffic to turn right into the site across two fast-moving traffic lanes. In heavy peak hour traffic, waiting for such gaps may require long delays and cause queuing at the intersection. Buses will also be slow to accelerate when turning left departing the site. Without special measures both movements will be dangerous.
•The safety issue could be avoided only with the constriction of a grade-separated interchange, the cost of which is prohibitive.
•Traffic lights would create as many problems as they would solve.
•Buses could be required to travel further east to the grade separated turn-off at Austlink, then make a turn at the round-about and enter the site from the east.
•A sign controlled arrangement with extensive supplementary traffic lanes on Mona Vale Road may be the best compromise. This would be expensive and may create environmental problems.
•Access across the driver training school is unsatisfactory.
•Traffic is likely to grow and make conditions more dangerous.
•The operation of the bus depot on its present site may be “sub-optimal”, but it does not appear to be unsafe.
In cross examination Mr Haynes acknowledged that existing traffic, including floats, trucks and buses, now turns right into the Showground and into the driver training site. He knows of no accident records, nor has he sought information on them. On further reflection. he was willing to reduce his estimate of the necessary gap for right turning buses from 10 second to 8 seconds, but this made little difference to his fundamental thesis that right hand turns into the proposed depot were dangerous. He agreed that both deceleration and acceleration lanes could be provided within the existing road construction, but this required the loss of the road shoulders. This would be bad for cyclists and deprive disabled vehicles from a place of refuge. He agreed, however, that there was no continuous shoulder now along this section of Mona Vale Road. In his view an acceleration lane for left turning traffic from the site would need to be 400-450 m long.
Mr B Masson, a traffic and transportation consultant retained by the applicant made the following points:
•The gap needed for a bus to make a right turn into the site from Mona Vale Road was 6 seconds. He came to this conclusion by riding on a turning bus and by interviewing the driver.
•The right turn at Richmond Road which the buses now execute regularly, has only 115 m of sight distance to the north. This is equivalent to a gap of 5.2 seconds if vehicles travel at 80 kph.
•If bus drivers find that the delay in turning into the site is unacceptably long, they will continue on Mona Vale Road and use the underpass at Austlink. He thought that a condition requiring this movement at all times would be too onerous for the bus company.
•There is a “myriad” of other turning movements along Mona Vale Road which are less safe than the one into the proposed bus depot.
•Despite the RTA's views, traffic lights at the intersection will eventually become necessary as a result of urbanisation at Warriewood and Ingleside.
•The existing right turn bay at the access point to the site be increased from the present 50 m to 110 m. This may be achieved within the existing road reservation.
•He agreed with Mr Haynes about the need for an acceleration lane for left turns from the site, though he considered that 400-500 m length is excessive and 200 m would be adequate. Whatever the length, an acceleration lane could be provided within the existing reservation of the road, though part of the shoulder would be lost.
In cross examination Mr Masson agreed that he had based his analysis of right turn movements on the existing timetable of the bus company and had added 20% for future expansion. He had not taken into account that the company might take over another bus service. In relation to a ban on right hand turns into and out of the site during peak hours, he thought this was not necessary but would be more acceptable to the applicant than a total ban.
Impact on the Driver Training and CARES Site (Lot 2845)
According to Mr Haynes the crossing of the existing driver training track on lot 2845 by the access road to the bus depot will reduce the effectiveness of the driver training and CARES activities on that site. He had considered six alternative ways of dealing with this conflict, ie "at grade" access; "at grade" access which excludes buses between 8.30 am and 5 pm; overpass; underpass; skirting around the western edge of the track; and skirting around the eastern edge of the track. He came to conclusion that none of these alternatives are satisfactory.
Mr Masson took issue. In his view the driver training and CARES program could co-exist with the access to the bus depot, though the operators would have to change their operations or undertake works. Some of the options include boom gates, vehicle activated traffic signals or a re-configuration of the existing tracks into two independent loops on either side of the bus access road with a single interconnecting roadway which crosses the bus access. Mr Masson pointed out that it was the responsibility of the operators of driver training and CARES on lot 2845 to allow access to the bus depot site. This requirement was included in the sub-lease of the site to Driver Training Australia and in the conditions of consent for both the driver training and the CARES program.
Mr M Ockwell, executive director of State Land Service, Department of Land and Water Conservation gave evidence in the applicant's case. When arranging for the subdivision which included access through lot 2844, his Department had no intentions about the physical arrangements of that access. This was a matter between the applicant and the Council. In cross examination he acknowledged that the subdivision of the former Police Driver Training site was a Crown subdivision and his Department had not obtained Council's approval. He did not consider that the RTA's agreement was needed for the creation of the access lot, since the access would not be a public road.
The Court also heard evidence from the operators of the driver training and the CARES program. Ms D North, manager of Driver Training Australia which sub-leases lot 2845 from the Council, told the Court that access through lot 2844 would have an adverse effect on her organisation's driver training programs. In cross examination she acknowledged that Driver Training Australia had been aware that both the development consent for the facility and the sub-lease of the site included a condition that access had to be allowed to lot 2842. Her organisation had accepted this condition on the basis that it was a risk, though at the time she considered it to be a low risk.
Mr J Williams, Ku-ring-gai operations manager of Driver Training Australia, confirmed Ms North's view that access to the bus depot through lot 2844 would be highly disruptive of his organisation's training programs.
Inspector G Abbott of the Gordon Police Patrol who is involved with the CARES program said in his evidence that he was opposed to the bus depot on two grounds. His first concern was with the dangerous right hand turn from Mona Vale Road which buses returning to the depot would have to make. His second concern related to the operations of the CARES program. He thought the bus depot would be detrimental to the program as it would cause air and noise pollution. In cross examination Inspector Abbott said that, at the time development consent was granted for the CARES program, he was not aware that access had to be granted to lot 2842, though he had been made aware of it later.
Constable R Armour, co-ordinator of the CARES program who spends most of his time on site said that he objected to the bus depot proposal because of the likely noise and pollution it would generate and because it would compromise the security of his program as the public would have access to the site. In cross examination he agreed that with boom gates, his program could continue to function, though he did not think this arrangement to be satisfactory.
Impact on National Park: Control of Erosion and Stormwater Runoff
Mr G Britton, an environmental engineer retained by the council, gave evidence in relation to soil and stormwater management of the proposal. His evidence included the following points:
•Site drainage is proposed via two independent systems. A trunk drainage system is proposed to collect and convey external runoff through the site via three pipes. These pipes discharge at headwalls into the gully along the southern boundary of the site. He did not object to this arrangement.
•An on-site drainage system is proposed to accommodate internal run-off which is directed to a proposed pollution control pond in the south-eastern area of the site for treatment before discharge via a spillway into the gully. He did not consider that the pond was large enough. With a pond of the proposed size, post-development nutrient discharge would be greater than pre-development.
•An erosion and sediment control plan should have been provided at development application stage. The applicant has not demonstrated that the proposed construction phase controls would avoid unacceptable impacts downstream.
•The covered fuelling station area would need a dedicated separate drainage system.
In cross examination, Mr Britton agreed that the pond would be adequate to act as a sedimentation basin during construction. He re-iterated, however, that the pond would be too small to remove the desirable 80% of phosphorus. In his estimate the pond would need to have a capacity of 2,500 m3.
Dr H Wright, chairman of the Middle Harbour Catchment Management Committee and an environmental scientist, gave evidence in the council's case. He made the following points:
•The drainage strategy would add to the run-off being discharged to Garigal National Park with consequent adverse environmental impact on the park's natural values.
•The site will be 35% impervious, which means a seven-fold increase in run-off as compared to the vegetative state. The frequency of discharge will also increase.
·The wet detention basin does not meet common specifications. The discharge from the wetland basin should meet a limit of 0.02 mg/l of total phosphorus, measured in dry weather flow.
•The proposal does not meet the EPA's or the Middle Harbour Catchment Management Committee's specifications for water quality and will cause a serious weed plume down the drainage line in the National Park.
•In relation to the applicant's revised and significantly enlarged water quality control pond which removes 86% of phosphorus, Dr Wright considered that this was still inadequate, as it was short of the quality of water flowing from pristine bushland.
In cross examination Dr Wright agreed that there were no pollution control devices attached to any of the existing developments adjoining the park in North St Ives. He did not believe that it was possible to treat the run-off from the site to a quality which was acceptable for the National Park. In his view the site should not be developed for any use involving impervious surfaces. Run-off from the site should be of a quality which is “close to nature” even if this means that the discharge from the site is of a higher quality than now.
Mr R Colbourne, a ranger with the north-metropolitan district of the National Parks and Wildlife Service, gave evidence. He was concerned about the potential effects of a bus depot adjoining the National Park. His concerns were not allayed by the proposed removal of sewage, oil and detergents from the site and the provision of a water quality control pond, as he had seen a number of such facilities which did not work well.
Mr R Brell, a consultant engineer retained by the applicant, gave evidence in relation to the hydraulic arrangements for the site. He presented to the Court a revised plan for two water quality control ponds, which had a combined capacity of 2,800 m3. He based this volume on Mr Britton's calculations (with which he agreed) of the residence time required to treat surface runoff to the same quality as it is in the site's pre-development state. The removal of phosphorus would be 86%. His earlier proposal for a pond with only 350 m3 capacity was based on the criterion of 70% removal of phosphorus which is the criterion adopted by the council's Stormwater Management Manual.
In relation to the proposed piping of the water course on the site, Mr Brell believed that this was not a natural water course.
Noise
Mr G Atkins, an acoustics consultant, gave evidence in the council's case. His evidence included the following points:
•The night-time background noise levels (LA90) at two properties in the most vulnerable position at North St Ives ranged between 32 and 40 dB(A). The criterion for sleep disturbance is a maximum noise level 15 dB above that level. Maximum noise emanating from the bus depot will be the sound of buses climbing up the access road. This noise must not therefore exceed 47 dB(A) at the nearest residence in North St Ives.
•He has measured the noise generated by a number of buses in the company's existing depot and found that maximum engine revolution and air brake venting achieved a sound power of 120 dB(A).
•By applying the ENM Noise Prediction Software to this data, he predicted that the noise emanating from the bus depot when measured at North St Ives in neutral weather conditions will be 45 dB(A) and will satisfy the sleep disturbance criteria of background plus 15 dB. However, with prevailing winds of 4 m/s from the north to north-west, the noise level could reach 57 dB(A).
•Any difference between his and Mr Murray's results can be explained by the fact that Mr Murray tested one bus, while he tested a sample. In addition, the type of fuel, the driver and the height of the exhaust pipe all affect the sound power.
•The Environmental Protection Authority's guidelines suggest a maximum noise level of 40 dB(A) in recreation areas. This noise level, when measured at the boundary with the National Park, should be applied as a condition of consent.
In cross examination Mr Atkins said that he did not know how often the unfavourable wind conditions on which he made his “worst case” prediction would occur. He did not think that the data collected at the nearest weather station at Macquarie University had relevance to the site. He confirmed that his method of measuring a stationary bus at maximum engine revolution was the correct approach.
Mr B Murray, an acoustical consultant retained by the applicant made the following points in his evidence:
•He agreed with Mr Atkins that the background noise in the North St Ives residential area was 32 dB(A) and that therefore the noise emanating from the bus depot and reaching this area should not exceed 47 dB(A) at the most critical times which was in the early morning.
•His measurements and calculations suggest that the maximum noise level at North St Ives would be 34 dB(A).
•Part of the difference between the two predictions is due to the different sound powers measured by Mr Atkins and Mr Murray. He had measured the noise of a bus actually driving on the site, while Mr Atkins had measured stationary buses at maximum engine revolution.
•Part of the difference is due to Mr Atkins assuming extremely unfavourable weather conditions. In Mr Murray's view winds of 4 m/s velocity would occur no more than 6% of the time, and then air turbulence would act to reduce noise transmission.
In cross examination, Mr Murray agreed that he had not considered the noise effect of the bus depot on the activities of the adjoining driver training site, nor on the residence on that site. He also agreed that he had not considered the noise generated by the activities of the depot, such as maintenance, refuelling and buses moving around. In his view the noise from these activities was much less than the noise from a bus ascending the access road towards Mona Vale Road.
Mr H Howard, an architect, landscape architect and urban designer retained by the Council, said that the proposed access road would destroy a great deal of native vegetation. The road may be only 7.5 m, but the gap in vegetation will be 30 m wide. In cross examination he agreed that the design of the road attempted to save as much vegetation as possible, but this did not change his view that the level of disturbance is unacceptable. He criticised the development application for not describing the existing vegetation on the site with accuracy.
Flora and Fauna
Mr R Lembit, an environmental consultant, gave evidence in the council's case. The thrust of his evidence was that the site was not as degraded as the applicant has suggested, that it contained valuable tree communities which will be destroyed. He also suggested that the plant survey carried out by the applicant was inadequate, in particular because it did not address the presence of koala feed trees. Mr Lembit was concerned that eucalyptus capitellata, a regionally significant tree, was not surveyed. Two rare or threatened Australian plants may be present on the site, namely two terrestrial orchids called corybas undulatus and genoplesium baueri.
In cross examination Mr Lembit agreed that these orchids were hard to detect except when they were in flower. He also acknowledged that the proposal would retain at least some of the eucalyptus capitellata on the site. He considered best use of the site to be bush regeneration.
Ms N Sonter, a landscaping and horticultural consultant retained by the applicant, gave evidence. She considered the site to be degraded and weed infested. It would not be suitable for bush regeneration. She pointed out that the proposal includes the retention of an existing stand of eucalyptus capitellata. In relation to the two orchids which Mr Lembit thought may be on the site, Ms Sonter noted that neither Mr Lembit nor a botanist retained by the applicant actually saw an orchid. She also drew attention to the fact that the applicant proposes to retain the western section of the site as natural bushland. She acknowledged that about one third of the trees will be lost on the access lot.
In cross examination Ms Sonter agreed that her assessment of the site was a visual one and that she did not know the exact number of each species occurring on the site. She re-confirmed her view that the site could not be regenerated without massive replanting.
Mr D Fanning, a biological consultant and expert on fauna assessment, gave evidence in the applicant's case. He had carried out a koala habitat (SEPP 44) assessment of the site. Of the eucalypts on the site the eucalyptus haemastoma (Scribbly Gum) is included in Schedule 2 of SEPP 44 as a koala feed tree. In his view this tree constitutes substantially less than 15% of the total woodland and tall scrubland canopy of the site. The site therefore does not constitute a potential koala habitat. Moreover, there is no evidence of koala presence on the site from scratches on trees or droppings. There is no recent record of koalas in the vicinity. The last known sighting occurred in the 1970s. The site is therefore not a core koala habitat, as defined by SEPP 44 and there is no impediment to the granting of consent as a result of that Policy.
Conclusions
This is a dispute about an activity which nobody wants near them but which provides a service that is essential for many people.
The council's case is that the application should be refused because
•buses turning into and out of the site will introduce dangerous conditions to traffic on Mona Vale Road
•a bus depot will interfere with the functioning of the driver training and CARES activities on the northern adjoining site
•stormwater runoff from the bus depot site will have an adverse impact on the adjoining Garigal National Park
•the noise emanating from the bus depot in the early morning will disturb the sleep of residents of North St Ives
•the applicant has not adequately surveyed the site's flora and fauna to make a proper assessment of the proposal's impact.
The applicant's case is that the application warrants approval because
•the site is remote from residential areas and screened by topography
•the bus company provides an essential service
•access into and out of the site from Mona Vale Road introduces no more dangerous conditions than already exist at many other points along Mona Vale Road
•those operating the driver training and CARES activities have a responsibility to allow access to the bus depot site
•the quality of stormwater discharged from the site after development will be the same as it is before development
•the noise of buses measured at the nearest residences is well below the level at which sleep is disturbed and
•there are no rare or threatened Australian plants and no endangered animals on the site.
I prefer the applicant's case for the reasons which follow.
The starting point for this application is that the zoning of the site allows it to be used for a bus depot. The zoning does not by itself justify the application which has to be assessed against s 90 of the Environmental Planning and Assessment Act 1979, but it reduces the force of arguments that the site is intrinsically unsuitable for a bus depot and should be used for bush regeneration.
The main difference between the traffic experts in relation to access into and exit out of the site was the gap in traffic they considered necessary for a bus to make a safe right turn into the site. Mr Haynes's written statement suggested that a 10 second gap was needed but in his oral evidence he suggested that 8 seconds may be adequate. Mr Masson thought that a bus could safely turn during a 6 second gap. I tend to favour Mr Haynes' evidence and accept his view that during morning peak hours such a turn would not be safe. A right hand turn out of the site towards the east appears even more difficult. The applicant suggested that there would be very few such turns but I am conscious that an approval for a bus depot is attached to the land and it is conceivable that a bus service to the east may one day wish to use the site. I have therefore imposed a condition prohibiting buses turning right into and out of the site between 7 am and 9 am.
Both Mr Haynes and Mr Masson agreed on the need for a deceleration and an acceleration lane within Mona Vale Road, though Mr Haynes suggested these lanes should be 400-500 m while Mr Masson thought 200 m would be adequate. I am persuaded by Mr Masson that the shorter distance would suffice, though I note that the longer lanes could also be accommodated within the existing road construction.
Mr Haynes and Mr Masson disagreed on the utility of installing traffic lights at the entrance to the site. Mr Haynes, whose view is supported by the RTA, thinks lights are inappropriate. Mr Masson believes lights will eventually be needed because of the increased traffic generated by urbanisation to the east. A decision on this issue is not necessary to the determination of the application. I accept Mr Masson's evidence that traffic lights may be desirable but they are not essential for this application.
I now turn to the proposal's impact on the adjoining activities of driver training and CARES. There is no doubt that buses entering and exiting the depot will interfere with these activities. However, everyone involved with the driver training and CARES activities, ie the Council, the Police and Driver Training Australia, have been aware all along that the users of lot 2845 had a duty to allow access to lot 2842. Ms North said in her evidence that Driver Training Australia signed the sub-lease in full knowledge of this obligation. Similarly, the Council has included the requirement to allow access in conditions of consent for the driver training and CARES activities. In the circumstances, there can be no argument that those operating on lot 2845 have an obligation to allow access to the bus depot site and to make whatever arrangements are necessary to accommodate this access.
Regarding the treatment of effluent and stormwater on the site, I note that sewage, oil and detergent will be pumped out and disposed of elsewhere. While there was initially a significant difference between the parties concerning the size of the water quality control pond, the applicant amended its proposals and now proposes to provide a pond which is larger than that suggested by the council's expert, Mr Britton. Both experts agree that the pond will be more than adequate to act as a sediment basin during construction and that it will remove about 86% of phosphorus from stormwater. This will preserve the pre-development quality of stormwater entering the National Park after the development is complete. The applicant has also preserved that section of the site which adjoins the National Park as natural bushland. I am satisfied that the proposal will not have an adverse impact on the quality of vegetation in the National Park and that therefore the requirements of SEPP 19 are satisfied.
I have noted Dr Wright's view that stormwater on the site should be treated to higher levels than suggested by Mr Britton (though the measures used by the two experts were not directly comparable). This was based on Dr Wright's view that the site is now pristine bushland. I do not think this is justified, given that the site has been used in the recent past as a four wheel driving track.
As concerns noise emanating from the proposed development, there were significant differences between the experts. Mr Atkins and Mr Murray agreed that the critical noise came from buses driving up the access road in the early morning and that this noise should not disturb the sleep of the nearest residents in North St Ives. They also agreed that the noise level at these residences should not exceed 47 dB(A). They differed, however, in their prediction of the noise levels reaching the residences. Mr Atkins predicted a noise level as high as 57 dB(A), given unfavourable weather conditions, while Mr Murray predicted 34 dB(A). Part of this difference can be explained by the different methods used to measure the noise, while part of it is due to Mr Atkins assuming extreme weather conditions.
Mr Atkins tested stationary buses with fully revved up engines in the existing depot. Mr Murray measured a bus on the site driving up a similar incline to the proposed access road. In relation to weather conditions, Mr Atkins assumed a wind velocity of 4 m/s. According to Mr Murray, at such velocities the predictive model ENM is not appropriate because turbulence occurs and breaks up the propagation of noise. I prefer Mr Murray's evidence because measuring a bus on the site appears more realistic than testing it in the depot, and also because Mr Atkins appears to have assumed winds of extreme velocity for his worst case prediction. I note that Mr Murray's highest prediction of 34 dB(A) is significantly below the 47 dB(A) criterion, so that even if his prediction is not entirely accurate, the sleep disturbance level is unlikely to be exceeded.
I have taken into consideration the evidence by residents that they used to hear noises from the tree loppings tip site and that they can now hear noises from the Showground and the shooting range. However, there was no evidence on the sound power of whatever generated the noises they hear. It is possible that the noise of trucks disposing of their load on the tip site was much higher than that made by a bus driving up the access road. Similarly gun shots on the shooting range may have a higher sound power than a moving bus.
The residents expressed their concerns about the impact of the proposed development on the views from North St Ives. The only expert evidence about the visual effect of the proposal was from Mr Byrnes who said that from the residential areas to the south the upper parts of the walls and the roofs of the proposed buildings will be visible. Given the curved shape of the roof and the possibility of using colours which blend with the surrounding bushland, I do not consider this to be unacceptable. I note that the topography will screen the development from areas to the west of the site.
I now turn to the flora and fauna on the site. Neither party found any evidence of rare or threatened Australian plants or endangered fauna. Mr Lembit referred to two native orchids which may be on the site, though he has not seen them. He agrees that the orchids are difficult to find except when flowering. The fact is that despite visual assessment of the site's vegetation by two botanists, the orchids have not been spotted. I do not accept that the faint possibility that they may be there justifies refusing this application.
Mr Lembit also referred to the widespread presence of eucalyptus capitellata, a regionally significant tree. There was evidence that a large number of these trees would be removed as a result of the construction of the access road. I accept that this is regrettable and have therefore included a condition that for every eucalyptus capitellata removed, a new one should be planted.
The parties disagreed on the way that the site should be assessed to ascertain whether it is a potential koala habitat within the meaning of SEPP 44. Mr Hemmings, for the council, submitted that potential koala habitat is characterised by 15% or more of the trees within a particular group or area of trees being koala feed trees. The evidence showed that within certain stands the proportion of eucalyptus haemastoma (which is a koala feed tree) exceeded 15%. Mr Craig for the applicant submitted that the Policy requires an assessment whether 15% of the trees on the entire site are koala feed trees.
I am persuaded by Mr Hemmings' argument that the 15% criterion in SEPP 44 refers to a particular area of trees, rather than a parcel of land. In this case the site qualifies as a potential koala habitat. However, there was evidence by Mr Fanning, not contradicted by the council, that there were no signs of koala presence on the site and that the most recent sighting was about twenty years ago. In the circumstances I conclude that the site is not a core koala habitat, as defined in SEPP 44, and that the requirements of the Policy have been met.
I now turn to the matter of public interest. I have carefully considered the residents' objections. The main impacts of the bus depot on them will be its visibility from a small part of North St Ives and the noise of buses leaving the depot in the early morning. I have come to the conclusion that both these impacts are well within the limits of acceptability. I have also taken into account, as part of the public interest, that the bus company provides an important service on which people who have no access to a car or cannot drive rely heavily. It would not be appropriate for a depot to be in the vicinity of residential areas. The environmental sensitivity of this site's location is a direct consequence of the need to be remote from residential areas.
The views of the Council as to the elected body representing the residents and the views of the residents themselves must not be lightly set aside. The procedure under which residents are invited to make known any objections they may have before a decision is made on a development application emphasises the important which those objections must be given. It is understandable that the Council and the residents who have objected to this proposed development should have been concerned. However, when the Council considered the development application it did not have the benefit of the extensive expert evidence, which was before the Court, including the detailed reports of those experts, all tested by thorough cross-examination. It is this additional material, which I have summarised above and much of which was not before the Council, which has led me to conclude that the concerns and fears of the residents in particular will be largely met. A consideration of this evidence, measured against the relevant heads of consideration under s 90 of the Act, leads me to the firm conclusion that the application should be approved.
For these reasons the appeal is upheld and the development application approved.
Orders
Appeal upheld.
Development consent is granted for a bus depot and associated facilities and access road on lots 2842 and 2844 in DP 822242 and known as 445 Mona Vale Road, St Ives as described in development application numbered 4367/94 subject to the conditions in annexure "A" hereto.
The exhibits may be returned.
ANNEXURE A
CONDITIONS
PROPOSED BUS DEPOT, 445 MONA VALE ROAD, ST IVES
The development to generally comply in all respects with Development Application No 4367/94 and Drawing Nos DA 31289/1, DA 31289/3, DA 31289/4, DA 31289/5, DA 31289/6, DA 31289/7, DA 31289/8, DA 31289/9, DA 31289/10 and DA 31289/11, all received by Council on 23 December 1994 as amended by the following drawings:
D.A. 31289-SO1 Amended bus manoeuvring area-indicative planting screen detail. Dated 30.10.95.
D.A. 31289-TO1 Indicative location of major trees in relation to proposed access. Dated 30.10.95
SC 100A Indicative proposed Retention Basins Site Plan 1:400.
Robert Brell Dated 26.11.95
& Associates
SC 101A Indicative St Ives Bus Depot Wet retention Basins Sections.
Robert Brell Dated 26.11.95
& Associates
except where amended by the following conditions of consent.
The colour scheme of the buildings comprising the development is to be in natural tones blending with the existing surrounding landscape to minimise any visual impact of the development. Such colour scheme is to be submitted with the Building Application for approval to the satisfaction of Council's Director Strategic Planning Services and Director Parks and Lanscape Services.
Hours of use of Bus Depot premises (excluding Caretaker's residence) are limited to the following:
Monday to Friday 5.15 am to 9.45 pm
Saturday 6.00 am to 8.00 pm
Sunday 7.30 am to 6.15 pmMaintenance and repair operations are restricted to buses of the operator only and are limited to hand held power tools. Such maintenance and repair expressly exscludes panel beating and spray painting which is prohibited on site.
For the purpose of traffic safety, right turns into the site from Mona Vale Road and out of the site into Mona Vale Road between 7.00 am and 9.00 am on weekdays shall be prohibited. All bus movementss to and from the site between 7.00 am and 9.00 am on weekdays shall be via a left hand turn.
Traffic access and egress measures on Mona Vale Road in the vicinity of the access to the site including acceleration and deceleration slip lanes are to be provided in accordance with the requirements of the Roads and Traffic Authority prior to commencement of the use. Such measures are to be to the satisfaction of the Authority and at the expense of the applicant.
A maximum of 38 buses are to be accommodated on site and operate from the site at any time.
A minimum of 48 car parking spaces are to be provided for use by depot staff. Such spaces are to be freely available and provided in accordance with the standards of Council's Car Parking Code to the satisfaction of Council.
Night lighting within the bus depot site and its associated vehicular access is to be concentrated such that there is no light spillage beyond the site or unshielded glare affecting adjoining lands or adjacent residential areas.
Full details of the proposed method of achieving the requirements for on-site detention and supporting calculations are to be prepared by a Consultant Engineer and submitted to Council for approval prior to the commencement of works on the site.
Construction of the on-site detention system is to be supervised and upon completion, certified by the designing engineer with respect to its compliance with:
a.The soundness of the structure.
b.The adequacy of the outlet control mechanism to achieve the discharge as specified.
c.The acpacity of the detention storage as specified.
d.The size of the orifice or pipe control fitted.
e.The maximum depth of storage over the outlet control.
f.The adequate provision of a debris screen.
g.The inclusion of weepholes in the base of the outlet control pit.
h.The rpovision of an emergency overflow path.
A pavement dilapidation report is to be prepared for Mona Vale Road in the vicinity of the access intersection. Following completion of works any pavement damage to Mona Vale Road is to be repaired to the satisfaction of the Roads and Traffic Authority and to provide written evidence of this to Council.
Any areas cleared of vegetation where there is a flowpath greater than 12 metres in length shall have a properly constructed silt fence erected to intercpet runoff.
On disturbed areas which will otherwise remain exposed for more than fourteen days before permanent stabilisation works are undertaken, a temporary cover of mulch shall be applied or a dense cover crop shall be established utilising sterile/non seed-setting species (eg Ryecorn or Japanese Millett) applied at a rate of at least 20 kg/ha or as directed by Council's Director Engineering Services.
A pollution Control Approval(s) pursuant to the Pollution Control Act, 1970 shall be obtained from the Environment Protection Authority in regard to the construction works and the post-construction water quality control works, where necessary. Full details of all such approvals shall be submitted to Council prior to commencement of any works on the site.
An Erosion and Sediment Control Plan shall be submitted for Council approval with the Building Application. The Plan shall include all details of any proposed clearing, earthworks, replanting, erosion and sediment control measures and site works and provide details of amelioration measures to minimise the impact upon downstream watercourses.
Erosion and sediment controls measures shall be designed in accordance with the Department of Conservation and Land Management (CALM) document "Urban Erosion and Sediment Control (Revised edition 1992). The proposed sizes of sediment control measures shall be nominated in the plan. The design average recurrence interval (ARI) of the rainfall for design of sediment control measures shall also be nominated in the plan.
Measures are to be provided for the following during construction:
a.Minimising site disturbance, and by the rehabilitation of cleared or denuded areas by the planting, establishment and maintenance of endemic groundcovers, shrubs and trees as soon as possible.
b.Where earthworks are involved, the removal, stockpiling and replacement of topsoil, and the prevention of erosion of excavated areas and topsoil stockpiles.
c.The control of water flows onto and across the land by the provision of surface and sub-surface drains where appropriate.
d.The prevention of transmission of soil, sediment and waterborne pollution from the land by the construction and maintenance of sediment and pollution traps in all watercourses and drainage lines which discharge water from the site.
e.Adequate provision shall be made to prevent the transmission of soil to the public roads and drainage system by means of vehicles leaving the site.
All requirements of the Erosion and Sediment Control Plan shall be put in place prior to the commencement of any works upon the site.
Sediment traps, filters, cut-off drains and other erosion control and soil conservation measures shall be maintained in efficient working condition to Council's reasonable satisfaction throughout the works. Failure to comply with this requirement may lead to a direction by Council to cease all other works until erosion control and soil conservation measures are restroed to operational condition.
In this regard, the payment of a Security Deposit in the amount of $15,000 to Council as security is required to ensure that:
a.All erosion and sediment control measures are installed and maintained.
b.There is no transmission of material, soil etc off the site and onto the public roads and/or into the drainage systems.
NOTEIn the event of an emergency where urgent attention is required to the above facilities, Council reserves the right to undertake any works as deemed necessary, without notification to the applicant, to rectify any problems. Costs incurred to these works will be deducted from the security deposit.
The pollution control pond is to be designed to the satisfaction of Council and the Environment Protection Authority with the goal that the quality of water after treatment in the pond is at least equal to the quality of water flowing from the site prior to the proposed development. The water quality parameter to be used as a design basis for achievement of the goal shall be total phosphorus. The required target percent capture of trotal phosphorus in the pollution control pond shall be established by the applicant in consultation with Council and the Environment Protection Authority and shall be agreed in writing by these parties.
Detention of storage for stormwater runoff is to be provided on-site in conjunction with the pollution control pond. Storage requirements are to be calculated for the range of storms (50 year ARI) to determine the maximum detention storage required. Performance criteria shall be obtained from Council prior to design.
A water quality monitoring program involving sites situated, as a minimum, at the inlet(s) and the outlet of the pollution control pond is to be submitted to and approved by Council and the Environment Protection Authority prior to commencement of any works upon the site.
Specific details which are to be incorporated into the program are:
a.monitoring sites
b.frequency of testing
c.parameters to be tested
d.reporting format
e.duration of monitoring program
f.the nature of event driven monitoring eg wet weather
g.target goals for water quality improvement within the pollution control pond
h.contingency plans in the event the targets in g. above are not achieved.
The costs of preparation of the water quality monitoring program and the carrying out of the program shall be met by the occupier. The professional qualifications and experience of the person who is to be responsible for implementation of the water quality monitoring program are to be submitted to Council for approval.
Monitoring of effluent/discharges from the site to be monitored for water quality factors quarterly for the first five years then as agreed with the National Parks and Wildlife Service, Environmental Protection Authority, Department of Land and Water Conservation and the Council. Water quality factors to include total phosphorus, total nitrogen, BOD, TSS (total suspended solids) and oil and grease. Analysis and reporting to be in accordance with the Clean Waters Act 1970 and Regulations.
Management of the wetland be conducted with the agreement of the National Parks and Wildlife Service and the Environmental Protection Autyhority with particular attention to avoiding the build-up of phosphorus and other nutrients by maintenance measures including the harvesting of biomass and/or the removal of high nutrient sediments. This will require the measurement of phosphorus and other substances in sediments and wetland vegetation. Wetland discharges are to be sustained releases and to exclude low flows which encourage weed growth, to the satisfaction of the National Parks and Wildlife Service.
A weed control program to be developed that includes minimising weeds (species exotic to the local natural vegetation) on the site in and around the wetland basin, its efflux channel and land adjacent to the boundary fence with the downslope properties. This is to include an agreed program with the Council and the National Parks and Wildlife Service to control weeds in the drainage line to which the bus depot discharges its water.
The submission of a Building Application pursuant to the requirements of the Local Government Act 1993 for the proposed structures and complying with the requirements of the Building Code of Australia.
The following details are also to be submitted for Council's approval at the time of lodgment of the Building Application:
*A detailed `Acoustic Statement' outlining management procedures and noise control measures for the site.
*The proposed means of collection and disposal of all waste oil and other waste liquids collected by oil/grease separators installed to serve the mechanical workshop, fuel storage areas, bus wash by and other locations as required by the NSW EPA.
*`Wetland Management Manual' which outlines in detail any proposed wetland, the anticipated pollutant loads, the plant species to be used and their pollutant uptake rate, plant harvesting techniques and disposal methods of the sediments and any toxicants collected in the sediment.
*Wastewater disposal from the office/bus shelter structure and the dwelling is to be by means of pump-out collection system or piping to the sewer. Calculations of septic tank and collection well capacities are to be in accordance with the Design Requirements for Septic Tanks and Collection Wells prepared by the NSW Department of Health.
*A formal septic tank application is to accompany the above information. The collection well is to have a 10 day collection capacity, and be emptied at least once per week.
*Details of the arrangements for effluent removal from the collection well.
*Written advice from Sydney Water confirming that the mains supply water is capable of serving the needs of the site with respect to normal water requirements and specifically fire fighting purposes.
*Copies of licences pursuant to the Clean Waters Act 1970 and Noise Control Act 1975, as required and issued by the NSW Environmental Protection Authority.
*The fire safety features of the building and the essential services to be installed therein for the safety of occupants and the prevention of the spread of fire complying with the provisions of the Building Code of Australia and the Local Government (Approvals) Regulation 1993. The building plans and specifications to be submitted shall contain all details of all works proposed to comply with those standards.
*Details in triplicate, indicating the location and design and provision of toilet facilities and staff amenities/required external toilet facilities/facilities for use by disabled persons.
*Plans, in triplicate, of the TRADE WASTE & RECYCLING WASTE storage area having:
a.Floor graded and drained to Water Board sewer or pump-out collection system.
b.Walls and floors finished with a steel trowel or similar finish with all intersections of walls and floor covered to a minimum radius of 25 mm.
c.Water provided to (HOT & COLD) hose cocks.
Note: The location of the above storage areas should be discussed with Council's Department of Development Control & Health Services prior to drafting of final plans.
*Plans in duplicate, prepared by a suitably qualified practising engineer of the road construction and layout with evidence that the design is suitable for use of vehicles for collection of waste having the following minimum dimensions:
Wheel base 5.0 m
Overall length 8.8 m
Track 2.5 m
Overall width 3.0 m
Loaded weight 22 tonnes
Lifting clearance height 5.2 m
All maintenance activities on the site are to be conducted in the workshop area and shall occur between the hours of 8.00 am and 5.00 pm.
All deliveries or vehicles servicing the site are restricted to the hours of 8.00 am to 5.00 pm Monday to Friday.
Only buses operating from the site are to be parked and serviced on the site.
All buses are to be reversed into their undercover carparking spaces and this requirement is to be included in the detailed `Acoustic Statement'.
The LA 10 noise emitted from total site mechanical plant should not exceed existing background noise levels when measured at or on the nearest residential premises. In this regard the daytime noise level is not to exceed 40 dB(A) and night-time noise levels are not to exceed 33 dB(A). An LA 90 plant noise level of 40 dB(A) is not to be exceeded when measured at the National Park boundary. When the intruding noise assessed at the point of reception, contains impulsive, repetitive frequency varying or tonal characteristics, a correction factor of 5 dB(A) shall be added to the measured level, then compared to the background level.
Noise emissions of buses operating from the site are not to exceed an Lmax86dB(A) measured at a position 7.5 metres from the bus.
Noise emissions of bus air brakes operating from the site are not to exceed an Lmax100dB(A) measured at a position 7.5 metres from the bus.
Prior to Consent to Occupy the St Ives site the occupier shall ensure that all buses are "Acoustically Certified" by a qualified "Acoustic Consultant" to satisfy Conditions 34 and 35 with the evidence of this certification being provided to Council.
All fuel storage, and similar areas, are to have a perimeter bund provided which is capable of containing 1.3 times the volume of fuel stored in the container. This is to cater for capture of wave effects.
All fuel storage areas are to be roofed with the roof extending to the extent achieved by measuring 45 degrees from the edge of the bund and to comply with Environmental Protection Authority guidelines for service stations.
The siting and location of buildings and flammable materials shall be in accordance with the Department of Planning Circular C10 and the Department of Bush Fire Services draft "Planning for Bushfire Protection".
Topsoil shall be stripped from areas to be developed and stock-piled within the site. Stock-piled topsoil on the site shall bew located outside drainage lines and be protected from run-on water by suitably positioned diversion banks. Where the period of storage will exceed fourteen (14) days stock-piles are to be seeded or sprayed with an appropriate emulsion solution to minimise particle movement.
Bushland protection measures shall be included on the site works drawing submitted with the Building Application and approved by Council's Director, Parks and Landscape Services prior to release of the building plans. All protection measures shall be implemented prior to commencement of any clearing, demolition or earthworks on site.
A plan and specification of the landscape works for the site shall be submitted to Council together with the Building Application and approved by Council's Landscape Architect - Development, prior to the release of building plans. The landscape plan shall comply with the standard detailed in Council's document "Preparing a Landscape Plan". The landscape works shall be completed prior to Council's Final Inspection.
NOTE: All new planting shall be indigenous plant species.
Seed and other plant material from indigenous plants of the site are to be collected from the site and/or surrounding area for use in subsequent landscape works. Seed is to be collected, stored and propagated by a suitably qualified person as approved by Council's Director Parks and Landscape Services. Only species native to the local area are to be planted with the exception of turf species, where necessary.
Prior to the release of the building application the occupier shall submit to and have approved by Council and the Environment Protection Authority an employee education program which explains the potential impacts of the bus depot practices on water quality and the rationale of the design for the pollution control pond.
Surveys for the rare orchids, Corybas undulatus and Genoplesium baueri are to be undertaken during the usual flowering period for the species. In the event that these species are located on the site, impact mitigation and management measures are to be approved by Council's Director Parks and Landscape Services, in consultation with the National Parks and Wildlife Service.
Brown Stringybark (Eucalyptus capitellata) seedlings grown from seed collected on the site and/or surrounding area are to be included in any replanting programs along the access road and in the south-eastern corner of the site. At least as many Eucalyptus capitellata are to be planted on site as are removed as a result of the development.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 36 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE D H LLOYD
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