The Pindimar Bundabah Community Association Incorporated v Great Lakes Council

[2007] NSWLEC 165

Reported Decision: (2007) 153 LGERA 113

Land and Environment Court

of New South Wales

CITATION:

The Pindimar Bundabah Community Association Incorporated v Great Lakes Council & Ors [2007] NSWLEC 165

PARTIES:

APPLICANT
The Pindimar Bundabah Community Association Incorporated

FIRST RESPONDENT
Great Lakes Council

SECOND RESPONDENT
Port Stephens Council

THIRD RESPONDENT
Graham Housefield and Kenneth Lee

FILE NUMBER(S):

10679 of 2006

CORAM:

Preston CJ

KEY ISSUES:

Development Application :- intensive aquaculture - tank-based aquaculture of Abalone - pipes for saline water for tanks to be placed in estuary - permissibility of pipes - compliance with site location requirements under State Environmental Planning Policy No 62 - Sustainable Aquaculture

CASES CITED:

Minister for Planning v Gales Holdings Pty Ltd (2006) 146 LGERA 450

DATES OF HEARING:

19 March 2007

EX TEMPORE JUDGMENT DATE:

19 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J E Lazarus (barrister)
SOLICITORS
Environmental Defender's Office NSW

FIRST & SECOND RESPONDENT
Mr T Robertson SC
SOLICITORS
Mallik Rees

THIRD RESPONDENT
Mr J Johnson (barrister)
SOLICITORS
Rick Jones & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

19 MARCH 2007

10679 OF 2006

THE PINDIMAR BUNDABAH COMMUNITY ASSOCIATION INCORPORATED v GREAT LAKES COUNCIL, PORT STEPHENS COUNCIL, GRAHAM HOUSEFIELD and KENNETH LEE

JUDGMENT

1 HIS HONOUR : The third respondent proposes to cultivate abalone in tanks on land at Pindimar, adjoining the Port Stephens estuary. Abalone live in saline water, not freshwater. The saline water for the tanks will be drawn through an influent pipe from the Port Stephens estuary. Water from the tanks will be discharged after passing through a reconditioning system back to the estuary.

2 The permissibility of the third respondent’s proposed development rests on the application of State Environmental Planning Policy No 62 - Sustainable Aquaculture (SEPP 62). SEPP 62 applies to aquaculture development (cl 5A) of two generic types, namely intensive aquaculture and natural water-based aquaculture (cl 17).

3 Tank-based aquaculture and pond-based aquaculture are two types of intensive aquaculture. Pond-based aquaculture is defined in cl 4 of SEPP 62 to be:
“intensive aquaculture undertaken predominantly in ponds, raceways or dams (including any part of the aquaculture undertaken in tanks such as during the hatchery or depuration phases), but not including natural water-based aquaculture”.
4 Tank-based aquaculture is defined in cl 4 of SEPP 62 as:

“intensive aquaculture undertaken exclusively in tanks, but not including natural water-based aquaculture”.
5 “Intensive aquaculture” is defined to be:

“aquaculture undertaken by providing supplementary food for the fish or marine vegetation (whether or not naturally occurring food is also consumed or available for consumption by the fish or marine vegetation).”

6 In the notes to the definitions, the typical pond-based aquaculture is stated to be the pond culture of prawns, yabbies, or silver perch. The typical tank-based aquaculture is stated to be the tank culture of barramundi or abalone. In this case, of course, the proposed development involves the tank culture of abalone.

7 SEPP 62 applies to development of the type specified in certain parts of the State. For pond-based and tank-based aquaculture, SEPP 62 applies to the parts of the State described in cl 1 of Sch 1 (cl 5(a)). Clause 1(2) of Sch 1 of SEPP 62 identifies the local government area of Port Stephens as one of the areas to which SEPP 62 applies. The Port Stephens estuary is in the local government area of Port Stephens.

8 Development to which SEPP 62 applies is permissible if it complies with certain requirements, as specified in SEPP 62 and Sch 2 thereto. These requirements differ depending on the type of aquaculture development, namely whether the proposed development is pond-based aquaculture (both estuarine and fresh water), tank-based aquaculture or natural water-based aquaculture (both oyster aquaculture and other aquaculture).

9 Aquaculture development to which SEPP 62 applies that is not permissible is prohibited by SEPP 62 (cl 11). This prohibition prevails in the event of any inconsistency with other environmental planning instruments, including local environmental plans (cl 6).

10 The requirements for development for the purpose of either pond-based or tank-based aquaculture are contained in cl 7 of SEPP 62 and Sch 1 of SEPP 62. Clause 7(2) provides:
“A person may carry out any such aquaculture development [being development for the purpose of pond-based aquaculture or tank-based aquaculture: see cl 7(1)] with development consent if, in the opinion of the consent authority, it complies with the site location and operational requirements set out in Schedule 1 for the development (the minimum performance criteria ).”

11 Division 1A of Part 2 of Sch 1 contains the site location requirements for the Hunter and Central Coast Region and Div 2 of Part 2 of Sch 1 contains the operational requirements for all regions, including the Hunter and Central Coast Region.

12 Clause 7B of Div 1A of Part 2 identifies acceptable areas for estuarine pond-based aquaculture in the Hunter and Central Coast Region. For the Port Stephens estuary, the areas are the areas coloured green on an identified map, the Estuarine Aquaculture Map 11, Port Stephens Estuary (dated 25 May 2003).

13 Some of the areas coloured green on this map abut the waters of the Port Stephens estuary, and other areas are connected to it, but the areas do not include the waters of the estuary.

14 Clause 7C of Div 1 of Part 2 of Sch 1 identifies the zoning under environmental planning instruments in the Hunter and Central Coast Region, in which aquaculture development may be carried out. The zoning is identified by reference to particular environmental planning instruments in the Hunter and Central Coast Region. These instruments are listed in column 1 of the Table to cl 7C.

15 The zones in these instruments that are listed differ for pond-based aquaculture (listed in column 2) and tank-based aquaculture (listed in column 3). For land to which Port Stephens Local Environmental Plan 2000 applies (being the relevant environmental planning instrument in this case for the water components of the proposed development), for “pond-based aquaculture”, the zones identified in column 2 are 1(a) Rural Agriculture “A”, 1(c1) Rural Small Holdings “C1”, 6(a) General Recreation “A”, 6(c) Special Recreation “C”, 7(a) Environment Protection “A” and 7(f1) Environment Protection “F1” (Coastal Lands). For “tank based aquaculture”, the zones listed in column 3 are 1(a) Rural Agriculture (A), 1(c1) Rural Small Holdings “C1”, 1(c2) Rural Small Holdings Zone “C2”, 4(a) Industrial General “A”, 6(a) General Recreation “A”, 6(c) Special Recreation “C” and 7(f1) Environment Protection “F1” (Coastal Lands).

16 Of relevance to this case, the influent and effluent pipes that will be located in the waters of Port Stephens estuary will be located to a large part in the 7(w) Environment Protection “W” (Waterways) Zone. This is not one of the listed zones for tank-based aquaculture, or for that matter for pond-based aquaculture.

17 The applicant on the appeal seizes upon this fact to argue that the third respondent’s development, either in whole or in part, is prohibited. This question has been raised in issue 6A of the applicant’s amended statement of issues. The question of the permissibility of the proposed development in this respect has been listed as a separate question to be heard and determined before the balance of the proceedings.

18 The applicant argues that the influent and effluent pipes are an essential and integral part of the third respondent’s proposed development, and ought properly to be characterised as being for the purpose of tank-based aquaculture. By dint of cl 7(2) of SEPP 62, the third respondent would only be permitted to carry out development for the purpose of tank-based aquaculture if, in the opinion of the consent authority, it complies with the site location requirements in Sch 1 of SEPP 62 for the development. The applicant submits that the proposed development, or at least that part that involves the influent and effluent pipes, does not comply with the site location requirements in Sch 1 because those pipes are not located in any of the zones listed in column 3 of the table opposite the name Port Stephens Local Environmental Plan 2000. Hence, the applicant submits, either the whole development or alternatively that part of the development involving the influent and effluent pipes, is prohibited by cl 11. The proposed development is not State significant development and the prohibited part cannot be approved as it was in a Minister for Planning v Gales Holdings Pty Limited (2006) 146 LGERA 450.

19 The first and second respondents and the third respondent dispute the applicant’s submission. They argue that each of the site location and operational requirements in Sch 1 of SEPP 62 do not necessarily apply to all of a proposed development for the purpose of pond-based aquaculture or tank-based aquaculture. On a proper construction, some of the site location or operational requirements apply only to certain components of development for the purpose of either pond-based aquaculture or tank-based aquaculture, but other requirements apply to all of the components of development for the purpose of either pond-based aquaculture or tank-based aquaculture.

20 In this case, the respondents submit, the zoning requirements in cl 7C of Sch 1 of SEPP 62 only apply to those components of development for the purpose of pond-based aquaculture or tank-based aquaculture which answer the definition of “pond-based aquaculture” or “tank-based aquaculture” respectively. This is evident, the respondents submit, from the draftsperson’s use of the prefatory words “pond-based aquaculture” in cl 7C(1) of Sch 1 of SEPP 62 and “tank-based aquaculture” in cl 7C(2) of Sch 1 of SEPP 62, rather than the words that the draftsperson used in cl 7(1) of the policy itself of “development for the purpose of pond-based aquaculture, or tank-based aquaculture”. The draftsperson must be taken to have intended to limit the zoning site location requirements to that part of development for the purpose of either pond-based aquaculture or tank-based aquaculture that actually meets the definitions of “pond-based aquaculture” or “tank-based aquaculture” respectively.

21 These definitions, as set out earlier, focus on that part of the aquaculture development that is undertaken, in the case of pond-based aquaculture “predominantly in ponds, raceways or dams (including any part of the aquaculture undertaken in tanks such as during the hatchery or depuration phases)” and, in the case of tank-based aquaculture, “exclusively in tanks”: cl 4(1) of SEPP 62.

22 The influent and effluent pipes that connect the ponds etcetera or the tanks with water bodies (whether estuarine or fresh) are not included in these definitions. Accordingly, the zoning site location requirements in cl 7C of Sch 1 do not apply to these influent and effluent pipes. Hence, there is no non-compliance under cl 7(2) of SEPP 62.

23 In contrast, the respondents point out, other requirements in Sch 1 of SEPP 62 are not limited to only the component of the development for the purpose of pond-based aquaculture or tank-based aquaculture that meets the requirements of the definitions of “pond-based aquaculture” or “tank-based aquaculture” respectively. An example is to be found in the site location requirements for conservation exclusion zones in cl 7 (for the North Coast Region) and cl 7D (for the Hunter and Central Coast Region). These requirements apply to all components of development for the purpose of pond-based aquaculture or tank-based aquaculture. Hence, if influent or effluent pipes were to be located in the identified conservation exclusion zones in cl 7 or 7D, the development would not comply with this site location or requirement.

24 The first and second respondents and the third respondent corroborate their submission as to the proper construction of cl 7C of Sch 1 of SEPP 62 by reference to other clauses and requirements in Sch 1. They point out that cl 7B of Sch 1 identifies areas coloured green on the Estuarine Aquaculture Map 11, Port Stephens Estuary, as being acceptable areas for estuarine pond-based aquaculture. Estuarine pond-based aquaculture depends on saline water from the estuary. Some of the areas that are coloured green on the map are located abutting the estuary and others are connected to the estuary. It is reasonable to assume that estuarine pond-based aquaculture will have influent pipes drawing saline water to the estuarine ponds from the estuary and will discharge treated saline water back into the estuary.

25 Clauses 11 and 12 of the operational requirements in Sch 1 support this assumption. Clause 11 provides that:
“All saline water discharged from an aquaculture farm (except tanks and raceways) must be held in a reconditioning system for a minimum of 24 hours prior to discharge and must be returned to the tidal reaches of the waterway.”
26 Clause 12 provides:
“All outlets from ponds, tanks and other facilities must be screened to avoid the escape of fish.”

27 It will be remembered that pond-based aquaculture, typically, involves the culture of prawns, yabbies or silver perch.

28 If the applicant’s argument as to the construction of Sch 1 of SEPP 62 were to be correct, because the waters of Port Stephens estuary are not within any of the zones identified in column 3 of the Table to cl 7C of Sch 1, estuarine pond-based aquaculture would be prohibited, notwithstanding that cl 7B identifies areas abutting or connected to Port Stephens estuary to be acceptable locations. However, if the respondents’ construction of SEPP 62 and Sch 1 were to be adopted, estuarine pond-based aquaculture would be permissible provided that the part of the development that meets the definition of “pond-based aquaculture” is in one of the identified zones in column 3 next to the applicable environmental planning instrument, Port Stephens Local Environmental Plan 2000. The other part of the development involving the influent and effluent pipes could be within another zone, such as 7W Environment Protection (Waterways) Zone.

29 In my opinion, the respondents’ construction of SEPP 62 and Sch 1 is correct for the reasons that they give and I have set out above (paragraphs 19-28).

30 Accordingly, the third respondent’s proposed development does not fail to comply with the site location requirements in Sch 1 by reason of the influent and effluent pipes being located in the 7(w) Environment Protection “W” (Waterways) Zone under Port Stephens Local Environmental Plan 2000 and the proposed development is not prohibited for this reason alone. This answers the separate issue. The matter should now proceed to a hearing tomorrow on the balance of the issues.


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