Tuite v Wingecarribee Shire Council

[2008] NSWLEC 1315

Set aside by Appeal:

Land and Environment Court

of New South Wales

CITATION:	Tuite v Wingecarribee Shire Council [2008] NSWLEC 1315 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Larry Tuite RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	11272 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Application - Ecologically Sustainable Development - Trees :- Bottled water facility Road safety
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 1989
CASES CITED:	Seaside Property Developments Pty Ltd v Wyong Shire Council (2004) 136 LGERA 111, [2004] NSWLEC 117 Telstra Corporation Limited v Hornsby Shire Council (2006) (2006) 67 NSWLR 256; (2006) 146 LGERA 10; [2006] NSWLEC 133 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Zhang v Canterbury City Council (2001) 115 LGERA 373 BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399
DATES OF HEARING:	13 and 14 March, 23 April, 20 and 21 May 2008
DATE OF JUDGMENT:	1 August 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC INSTRUCTED BY Slade Manwaring RESPONDENT Mr C McEwen SC Mr M Staunton, barrister INSTRUCTED BY B Bilinsky & Co

JUDGMENT:

LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

1 August 2008

07/11272 Larry Tuite v Wingecarribee Shire Council

JUDGMENT

Introduction

1 COMMISSIONER: In 1994, the then Minister for Planning approved the rezoning of a property on the northern side of Governors Road at Bundanoon. The rezoning of the property permitted its use as a bore water extraction facility for pumping water from the underlying Hawkesbury sandstone aquifer. The water so to be extracted was to be removed in bulk from the site for commercial bottling elsewhere.

2 Whether or not the 1995 development consent subsequently given by Wingecarribee Shire Council to an application for operation of such a facility is still in operation or has lapsed is not a matter for my consideration in these proceedings. I am not to determine the status of that development consent in these proceedings (as that is the subject of another set of proceedings).

3 However, a matter of fact to be considered in these proceedings (as discussed later), is that, in 1995, the Council did give development consent for such an operation. Elements of imprecision and error in the relevant supporting documentation for this application are irrelevant for my consideration as later discussed. However, that development consent included a requirement that Governors Road, the small country laneway which provides practical vehicle access to the bore and pump shed on the site, be partially reconstructed by the beneficiary of the consent. The condition, condition 6(b), concerning Governors Road was in the following terms:

The applicant shall reconstruct the road pavement surface of Governors Road from its commencement at the intersection of Church Street to its termination at Lot 1 DP 307554. This work shall involve the re-surfacing of Governors Road with a two coat bitumen seal for a width of 4.0 metres plus 1.0 m wide gravel shoulders to extend from Church Street to the western boundary of Lot 14.

4 The extent of the works required by this condition and the impact on the vegetation in Governors Road, had they been carried out, is a matter discussed later in this decision.

The site, its location and consent

5 The site is generally rectangular and is approximately 100 ha in size. It has a short frontage to the made section of Governors Road, at the south-western end of the site, and has a short frontage to Osborne Street at the north-western end of the site. The un-made section of Governors Road continues along the whole of the southern boundary of the site. Located at the south-western corner of the site, a short distance within the site and a short distance from its western boundary, is a Colorbond steel shed sitting on a concrete slab. The bore from which water is proposed to be extracted is below the concrete slab and the shed contains the operating equipment for the pump presently used to extract water from the bore.

6 The site is zoned residential 2(a1) – Residential “A1” Zone – in the Wingecarribee Local Environment Plan 1989 (the LEP) as are the other properties between the site and Church Street on the northern side on Governors Road. The land on the southern side of Governors Road is zoned Rural and is used for agricultural pursuits. The owner of this property, Mr McKay, gave evidence during the first site inspection. Although the site is therefore at a zone interface, I am satisfied that there is no impact on the adjacent property in the rural zone to the south that would require any special consideration of the type discussed in Seaside Property Developments Pty Ltd v Wyong Shire Council (2004) 136 LGERA 111, [2004] NSWLEC 117.

The 1994 proposal and subsequent 1995 development consent

7 The 1994 development application sought approval for the operation of an extraction facility. The application described the activity as being proposed to be conducted on Part Portion 58 and Lot 1 DP 307664. The site is Lot 1 DP 307664 and Part Portion 58 is the land immediately to the west owned by Mr and Mrs Miller. No owner’s consent for the 1994 application was ever given by the owners of Part Portion 58.

8 The 1994 development application was accompanied by a Statement of Environmental Effects which dealt with the various matters then required to be considered in the statutory assessment process. There was no discussion in this document of the impact of or necessity for removal of vegetation in the Governors Road road reserve. Such discussion does not appear to have been required as part of the statutory assessment framework of that time.

9 The Council assessment report of the application also did not discuss this issue. The approach taken in both documents is generally consistent with the less stringent requirements of that era and I accept that, for the purposes of my assessment of the present proposal, I should make nothing of these omissions on behalf of either the then applicant or the Council.

10 At some stage, apparently, during the Council assessment process, the Council became aware that the application included land for which no owners’ consent had been given. As a consequence, the terms of the description of the land to which the resulting 1995 consent applied was described as Lot 1 DP 307664.

11 However, the terms of the development consent also expressly describe the purpose of development as being:

Collection of spring water extracted under commercial licence - in accordance with plans prepared by Norlex Holdings dated 9 February 1994 except where amended by any conditions below.

12 These plans comprise two sheets. The first of the sheets is what appears to be an extract from the zoning map of the area at the time marking the land which it was intended be covered by the application. This land includes both the land owned by the applicant and the land owned by Mr Miller. The applicant for that consent was a company associated with the applicant in those proceedings. It can be seen from this plan that the location of the bore and pump shed works described by the application are, in fact, not on the applicant’s land but on the Millers’ land.

13 In addition, the second plan, which might be regarded as a close-up plan, clearly shows the proposed bore and pump shed location as being in the vicinity of a dogleg in a property boundary, which dogleg, when considered in conjunction with the broader scale plan, is obviously the dogleg of the boundary with Jackman’s cottage (a dwelling discussed in more detail later).

14 This information came to my attention after the (first) close of the hearings as I had asked the parties whether or not I should have the details not merely of the 1995 consent but of the 1994 development application to which the consent was the Council’s response. The parties had agreed at the conclusion of the first hearings that I should be provided with a copy of the application and this was forwarded to me. In light of these plans, proceedings were re-opened to permit the parties to make submissions on and provide further relevant documents concerning the 1995 consent.

15 A bundle of relevant documents (including documents extracted from the Council’s file) were tendered by Mr P Tomasetti SC, senior counsel for the applicant, at the subsequent reopened proceedings.

16 In light of the additional documents and submissions, I have concluded that I should, for the purposes of these proceedings, merely have regard to the existence of the 1995 development consent and that one of its conditions required that the upgrade of Governors Road (but only to the extent that that upgrade was required) to permit the transportation of water from the site be undertaken at the expense of the person or company undertaking the extraction activity.

17 Any other interpretation matters concerning the 1995 development consent documents [including its functional utility, if valid, in light of the matters discussed at (68) to (71) below] should be left, in my view, to the proceedings concerning the continuing validity (or otherwise) of that consent.

The present proposal

18 A fresh application, Development Application LUA 07/1170, has now been lodged with the Council for the establishment of a storage facility for an expanded production capacity – this comprises a larger Colorbond shed at the present shed’s location, storage tanks to hold the water pending transfer to an articulated road tanker with a capacity of 37,000 litres to remove the water from the site and internal roadworks on site to facilitate the movement of the road tanker. The replacement Colorbond shed is to be some 18 m long, 6 m wide and 9 m high and will replace the present shed on the site.

19 The new shed would be located adjacent and parallel to and setback some 1800 mm from the boundary with the adjacent property to the west which is owned by the Millers. No landscaping of any significance is proposed (or possible) in this setback.

20 During the course of the hearing, after it had become clear that the Council was, in fact, the consent authority for roadworks on Governors Road, the application was amended to include the proposed roadworks on Governors Road from its intersection with Church Street to the front gate of the site. This formal inclusion of the proposed roadworks did not expand the range of matters to be considered, as the acceptability of the roadworks necessary for the application already formed part of my assessment of its overall impact.

The site inspections

21 Two site inspections were undertaken during the course of the proceedings. The first was the general site inspection during the course of which evidence was heard from a variety of objectors to the proposal as well as from a number of relevant expert witnesses. The second site inspection was undertaken specifically to understand the written material provided by the arborists retained by the parties after the issue of the impact of road construction of Governors Road on vegetation in the road reserve emerged as being of potential significance.

22 During the course of the hearing, the parties submitted an agreed set of notes of the evidence given during the course of the first site inspection. These notes are quoted, where appropriate, on individual issues. These notes have acted as a significant supplement to my own recollection of that evidence.

The issues

23 This appeal was commenced on the basis of a deemed refusal by the Council of the present application. At the preliminary stages of the proceedings, the only issues which were raised by the Council were those which had been pressed primarily by the Don’t Bore Bundanoon Committee, a local community group. These issues were numerous (as there is vigorous and well organised opposition to the proposal in the Bundanoon community). However, having had the advantage of reading the extensive written submissions (including a detailed submission from the committee) and petitions which have been presented in opposition to the proposal, I am satisfied that many of these issues raised (although matters of concern held genuinely and honestly by those who expressed them) are concerns which relate to matters not part of the present application but are likely to have arisen from details of the earlier application.

24 As the proceedings unfolded, so too the matters pressed by the Council in opposition to the proposal grew.

25 Prior to the on the first on-site inspection and hearings, Mr C McEwen SC, senior counsel for the Council, added issues relating to:

• the impact of extraction of the water from the aquifer on the long-term sustainable capacity of the aquifer;
• impact of the extraction of water on a number of waterfalls in Morton National Park (a National Park which borders the town on its eastern side and which is not only widely enjoyed by local residents but also forms a significant part of the local tourist industry's attractions); and
• impacts on Jackman’s Cottage, a dwelling located closely adjacent to the northern side of Governors Road.

26 With respect to proposed road construction for Governors Road, the applicant's Statement of Environmental Effects (dated October 2007) said that there would be little impact on vegetation in the road reserve. The SEE did so in the following terms:

No trees on Lot 1 would be directly affected by the proposal. However, a small number of small trees and one larger tree growing on Governors Road near the entry/exit would need to be removed. Any trees lost would be replaced by planting on site.

27 However, during the site view in the first phase of the proceedings, it became obvious that there would potentially be an extensive impact on the vegetation in the Governors Road road reserve and also potential impacts on trees located on private properties with boundaries to Governors Road. The cause of such potential impacts is that, contrary to the general widths of minor road reserves in New South Wales (which are reserved, for the most part, on a reserve width of approximately 20 m), the road reserve for Governors Road is only 10 m wide.

28 As a consequence of these potential vegetation impacts emerging during the first hearings, the Council and the applicant each commissioned an arborist to undertake an assessment of impacts on trees in and adjacent to Governors Road.

29 When the arborists had completed their inspections and undertaken a joint discussion of the impact on trees in the Governors Road road reserve and on adjoining properties, it was clear that, with the possible exception of four trees in the vicinity of Jackman’s Cottage, the arborists agreed that all existing vegetation in the road reserve from Church Street to the entrance of the site would need to be removed. The effect of this agreement was that the Council pressed additional issues concerning both the specific impact of this removal on the residents of Governors Road and the broader public interest (being the issue of the scale of removal of vegetation).

30 Finally, on vegetation matters, parts of the vegetation along the road reserve, at various locations, are remnants an endangered ecological community. This endangered ecological community is known as Southern Highlands Shale Woodland. The acceptability of the proposed removal of these remnants also requires consideration.

Additional issues

31 In addition, as there are three residences whose sole access is by Governors Road, the applicant was required to provide evidence that the proposed reconstruction of Governors Road would not deny residents of access to their dwellings for significant periods of time.

32 Further, as the local community committee submission and a number of individual objections raised, as a public interest question, a number of general impacts said to arise from the bottled water industry, I directed the applicant to address ecological sustainability issues as these issues arose by necessary inference from those objections.

33 Additional specific issues raised by the objectors (which I am satisfied arise in the context of a proper understanding of the present application and which therefore need to be considered by me pursuant to s 79C(d) and/or (e) of the Environmental Planning and Assessment Act 1979) relate to:

• the broad issue of traffic impacts through the centre of the village;
• specific road safety issues arising from the steep hill in Church Street immediately to the north of Governors Road;
• specific road safety issues in the vicinity of the village’s Public School;
• amenity impacts on the residences in Governors Road; and
• the impact of the development on the adjacent property to the west.

Matters not properly issues in the proceedings

34 The objectors raised a wide range of other matters. These concerned, primarily, matters such as the possible impact of much larger trucks than those which are actually the subject of the application or the possibility that, at some future time, if an approval were to be granted to this application, the applicant would seek to take advantage of the fact that the water extraction licence held is for a water volume approximately 2.5 times the size which would physically be capable of removal using the presently proposed tankers at the presently proposed frequency of operation.

35 Such fears and concerns (although, I accept, as earlier noted, they are genuinely and honestly held by those who have expressed them) play no part in these proceedings as I am obliged to consider and determine the present application based on the specific terms of the proposal for which consent is sought.

Impact on the aquifer and the Morton National Park waterfalls

36 Mr Lane, a hydro-geologist, was appointed as the single parties’ experts on these matters. He gave uncontradicted evidence that the proposed levels of extraction from the aquifer would not have any permanent, damaging impact on the aquifer as a whole or on individual existing bores in the vicinity.

37 It was also his evidence that there would be no down-stream impacts on the Morton National Park waterfalls.

38 Mr Lane’s uncontradicted expert evidence, which I accept, satisfies me that the water extraction levels proposed by the application are acceptable.

Southern Highlands Shale Woodland

39 The applicant has provided evidence from Dr Robertson, an ecology expert, which satisfies me that, if the application were to be approved, the removal of these remnants could be appropriately and satisfactorily compensated for by supervised planting, on the applicant’s property, of locally seed-sourced representative plants from this vegetation association. Indeed, the applicant proposes, if this were to occur, that these plantings would approximately double the area proposed to be removed of this vegetation association.

40 I accept Dr Robertson’s uncontradicted expert evidence on this matter. As a consequence, I accept that requiring compensatory planting removes this as an issue.

Impacts on trees in and adjacent to the Governors Road road reserve

41 At the commencement of this section, I note that I am satisfied that an agreed redesign of the proposed parking bay in Governors Road near the intersection with Church Street has sufficiently limited issues of possible impact on an English oak tree on an adjacent property to the north that, despite remaining concerns held by Mr D’Hondt, the Council’s arborist, that there would still be some impact on this tree, the redesign of the parking bay does not to warrant further concern over this tree.

42 From the evidence given during the course of the on-site inspections, I infer that nothing of any significance, except the extent of the natural growth of the trees over the intervening period of time, has occurred to Governors Road since 1995. Governors Road, in its present form, is shown in the photograph below.

43 As earlier noted, I have had the benefit of written and oral evidence from two arborists - Ms Hopwood for the applicant and Mr D’Hondt for the Council. Their evidence included an informal discussion as we walked the length of Governors Road from the site to the junction with Church Street. As also earlier noted, the arborists agreed that, with the possible exception of four trees in the vicinity of Jackman’s Cottage, all existing vegetation in the Governors Road road reserve from Church Street to the entrance of the site would need to be removed.

44 In addition, there was disagreement between them as to the likely impact of the reconstruction of Governors Road on a number of trees located on properties adjacent to Governors Road.

45 Although the arborists agreed that virtually all vegetation would need to be removed, they disagreed about the significance of the vegetation that would be removed.

46 In the arborists joint statement, Ms Hopwood said:

The majority of trees located within the road reserve consist of smaller tree species such as Pittosporum undulatum (Sweet Pittosporum), Acacia spp. (Wattle) and young Eucalyptus spp. (Gum Tree). Most of these are likely to have established after a disturbance event. Due to their small size, rapid growth rate and availability from most provenance nurseries, these trees are considered replaceable in the short term.

47 On the other hand, Mr D’Hondt said:

Although the majority of the trees within the road reserve are classed as young trees more than half (45) are 10 metres or more in height with fifteen (15) being between 20 and 40 metres in height. The volume and size of these frees are considered to have a significant impact in this environment.

Of the twenty five (25) Eucalypts in the road reserve ten (10) are classed as young, ten (10) are classed as mature and five (5) are classed as over-mature. The regeneration of these Eucalyptus spp. is considered a natural occurrence and not due to disturbance.

48 As earlier are noted, the northern side of Governors Road is zoned 2(a1) – Residential “A1” Zone. The second of the objectives for this zone is in the following terms:

to ensure that any development will not have an adverse effect on the landscape or scenic quality of the area or the amenity enjoyed by residents located within the area.

49 The general clause in the LEP dealing with zone objectives and the development control table, cl 9(3), requires the following:

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

50 Although the removal of the vegetation from the Governors Road road reserve does not take place in the Residential “A1” Zone, it is a necessary corollary of development which is within that zone. Therefore, I am satisfied that consideration of approval of this development in that zone which is necessarily accompanied by that removal of vegetation requires that I assess of the effects of that development against these provisions.

51 The present landscape of Governors Road is a confined one which is, essentially, only enjoyed whilst travelling along Governors Road itself. The landscape and scenic qualities of Governors Road are those of a narrow, unformed, slightly meandering, rural laneway fringed closely by vegetation. During the course of the objectors’ evidence, comment was made about people walking along Governors Road as part of local bushwalking activities.

52 The words in the zone objective, an adverse effect on the landscape or scenic quality of the area, do not qualify or seek to describe a degree of significance to the extent of any adverse affect on either the landscape or the scenic quality of the area – merely requiring of whether there be such an adverse effect on one or the other attribute.

53 Although there is a disagreement between the arborists about the significance and nature of the vegetation within the road reserve and a minor disagreement between them as to whether or not four trees in the vicinity of Jackman's cottage could be retained, I did not understand that there was any fundamental disagreement between them that effectively were all virtually all of the vegetation on the road reserve would need to be removed.

54 The nature of Governors Road would be significantly and fundamentally altered if the application were to be approved. The meandering country lane – muddy under foot as it was at the time of the inspections – and fringed by vegetation brushing against vehicles traversing it, would be replaced with a gun-barrel straight, hard surfaced and well drained properly formed road – covering virtually the full width of the road reserve. There is no realistic opportunity for any significant landscaping to be installed in the road reserve if Governors Road is reconstructed as proposed.

55 This change, if permitted, would be not merely an adverse effect on both the landscape and scenic quality of the area but these adverse effects would be, in my view, significant ones. As a consequence, I cannot be satisfied, as required by cl 9(3) of the LEP, that the carrying out of the development is consistent with the objectives of the Residential “A1” Zone. The application therefore must be refused on this basis. If I am wrong on the basis of consideration, I am separately satisfied that the changes proposed are sufficiently visually adversely impacting on users of the lane (both resident and visitor) to be unacceptable.

56 With respect to the impact on trees on adjacent properties, the arborists considered the appropriateness of a British Standard, Trees in relation to construction – Recommendations (BS 5837:2005). This Standard provides, in 5.2.2, a table for calculating what are the needed root protection areas which are described as being necessary to avoid damage to the roots or rooting environment of retained trees. The effect of the relevant formula is to provide, in general terms, a circular area calculated as having a radius of 12 times the diameter of a single stem (trunk) tree when that diameter is measured at a point 1.5 m above the ground – this measurement being what is known, colloquially, to arborists as the diameter at breast height (DBH).

57 The joint statement of the arborists in these proceedings agreed that it was appropriate to adopt but modify this standard so that the radius for a tree protection zone in these circumstances should be 10 times DBH rather than the 12 times prescribed by the British Standard. This modification was agreed to by Mr D’Hondt because the proposed construction activities would only be taking place on one side of any of these trees.

58 In purely mathematical terms, the reduction of the tree protection zone is a little more than 30% - a calculation derived from the ratio of the squares of the two radii.

59 During the course of the second site inspection, whilst walking along Governors Road, a number of trees on adjacent properties not owned by the applicant were identified as being ones where a tree protection zone of 10 times DBH could not be established and that road reconstruction works would be necessary intrusions into the tree protection zone which would otherwise be calculated. The arborists disagreed on the significance and acceptability of such intrusions. Ms Hopwood said, in this regard:

The amended version suggests that a radial setback distance of 10 times the trunk diameter be used as the tree protection zone. However, the existing site conditions have also being taken into consideration and where intrusions into the tree protection zone are unavoidable, sensitive construction methods based on BS 5837:2005 have been recommended.

60 Rejecting this proposition, Mr D’Hondt said in this regard:

The amended version of the tree protection zone already reduces the size of the protection zone. This reduced protection zone will not allow for the proposed soil and other construction work into this zone without causing irreversible damage to the trees.

61 The oral evidence given by these witnesses did not narrow their areas of disagreement. Mr D’Hondt noted that the trees (which had been marked with blue ribbons to identify them during the site inspection as being within 10 times DBH of the Governors Road reconstruction areas) were likely to be impacted on differentially depending on the tree species, their exact position, soil conditions, the slope of the land, genetics and so on. However, he expected that some of them would be impacted quite heavily and others more marginally.

62 Ms Hopwood expressed the view that the existing track compaction along Governors Road meant that the roots of any trees in this facility would either be minimal or very deep and could be accommodated by the sensitive construction methods specified in section in 11 of the British Standard.

63 Although of the British Standard does contemplate works being undertaken within the calculated tree protection zone, where such works are carried at utilising these sensitive construction methods, I accept Mr D’Hondt’s view that the ~30% reduction in tree protection zones occasioned by moving from 12 DBH to 10 DBH as the basis for their calculation largely, if not entirely, takes account of this permissibility of works in such zones.

64 However, I am satisfied I should also have regard, at least to some extent, to Ms Hopwood’ evidence of the likely impact of the present track compaction on root existence and/or depth from these trees.

65 As a consequence, doing my best to bring together these conflicting opinions, I am satisfied that I should accept that there will be some impact on these trees and that, for some of them, that impact might be significant. However, I am not prepared to accept that I should conclude that this would be fatal for any of those trees or that any of those trees were sufficiently significant that if the impact were fatal for that tree, that damage would warrant refusal of the application.

66 However, this finding still is an adverse one and adds another small element to the other issues which contribute to refusal of the application.

67 In addition to all of the foregoing, it is relevant to consider the extent to which the present proposed removal of vegetation is greater than that envisaged by the 1995 consent.

68 Immediately below is a copy of an extract from a plan (taken from the 1995 application papers) which shows the various property identifiers on Governors Road from Church Street to the site. The site is the heavy bordered allotment shown on that extract.

69 As earlier noted, condition 6(b) of the 1995 consent, concerning Governors Road, was in the following terms:

The applicant shall reconstruct the road pavement surface of Governors Road from its commencement at the intersection of Church Street to its termination at Lot 1 DP 307554. This work shall involve the re-surfacing of Governors Road with a two coat bitumen seal for a width of 4.0 metres plus 1.0 m wide gravel shoulders to extend from Church Street to the western boundary of Lot 14.

70 An examination of the title details shown on the above plan extract makes it clear that the extent of the required reconstruction of Governors Road in the 1995 consent was limited to that element of Governors Road from Church Street to the western boundary of Lot 14 and that this comprises, at most, some 40% of the length of Governors Road now proposed to be reconstructed.

71 I have been unable to find, in any of the material in evidence in these proceedings, any discussion as to why the 1995 requirement for reconstruction of Governors Road was limited in the fashion discussed above. However, to the extent that the applicant has sought comfort from the existence of the 1995 consent effectively requiring removal of vegetation from the Governors Road road reserve, such comfort could not be derived for vegetation in that portion of the Governors Road road reserve between the western boundary of Lot 14 and the entrance to the site.

72 As a consequence, I do not consider that there is any basis upon which the 1995 consent conditions could be used to set aside the valid and otherwise insurmountable concerns which I consider presently exist concerning the removal of vegetation in the Governors Road road reserve and the impact on vegetation on adjacent properties.

Jackman’s cottage

73 The proximity of Jackman's cottage to Governors Road can be seen in the photograph reproduced below. Jackman's cottage is the structure to the right of the photograph viewed between the two trees in the foreground. This photograph is taken from the Don’t Bore Bundanoon Committee’s submission and the tanker depicted is not relevant to my assessment. The Governors Road road reserve extends, in rough terms, to the edge of the shrubby vegetation shown between those two trees.

74 The concern about impacts on the fabric of Jackman's cottage arise as Jackman's cottage is one of the few surviving examples of very early buildings from European settlement of the area. This cottage, although substantially modified over the years since its construction in the 1860s, is now subject of an interim heritage order and further consideration by the Council and the National Trust on what heritage values the building might have.

75 The specific concerns relating to the fabric of Jackman's cottage were put on the basis that the proposed road tanker movements along Governors Road were likely to cause vibrations which would lead to damage to the structure.

76 The applicant proposes movements along Governors Road of an articulated road tanker with a capacity of 37,000 litres. Vibration sensitivity testing was undertaken using a loaded road tanker, of a significantly lesser capacity, with vibration sensors located at the boundary to the property upon which Jackman's cottage is located. Testing was not possible at the cottage itself as owners consent was not given for this purpose.

77 I have been provided with expert evidence based on this testing and what, I am satisfied, are the appropriate technical adjustments to compensate for the difference between the test vehicle and the vehicle proposed to be used by the applicant. This evidence is that the applicant's proposed road tanker movements would not have an impact on the fabric of Jackman's cottage. I accept these conclusions.

78 Further, I am satisfied on the basis of evidence on behalf of the applicant that, if the proposed reconstruction of Governors Road were to occur, this would not alter that conclusion.

79 I am also satisfied that the reconstruction of Governors Road could be managed in a fashion which did not cause any damage to Jackman's cottage during the construction phases.

80 To the extent to which a precautionary approach might need to be taken in this regard, requiring ongoing vibration monitoring at the closest wall of Jackman's cottage (should the owner permit this) or at the most approximate location in the Governors Road road reserve (if monitoring at the cottage’s wall was not permitted) would be the appropriate approach to take.

81 As a consequence of the foregoing (and in light of my general conclusion on the unacceptability of the proposal), I do not need to determine the extent to which Jackman's cottage might or might not be regarded as having heritage significance.

82 The specific issue also arose concerning Jackman's cottage and the potential for survival (or not) of four trees in the road reserve adjacent to the cottage and between the cottage and the proposed reconstructed roadway. These four trees are the only vegetation proposed to be retained in the Governors Road road reserve.

83 Although the arborists differed about whether or not these trees would survive the impacts of road construction and the differing impacts, if any, of how drainage would be effected in the vicinity, I am satisfied that I should consider these trees as an element of a general visual outlook from the residences rather than warranting separate consideration.

84 For reasons set out later, I am not satisfied that changes in outlook for any of the residences fronting Governors Road, including Jackman's cottage, should be regarded as an adverse change in outlook so as to warrant refusal or contribute to warranting refusal of the application. I have so concluded whether or not these four trees survive and, at hence, I do not need to choose between the competing arboricultural views on this point.

Bottled water and ecologically sustainable development

85 In considering the question of whether or not the principles of ecologically sustainable development (as discussed by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council (2006) (2006) 67 NSWLR 256; (2006) 146 LGERA 10; [2006] NSWLEC 133) are infringed and are sufficiently infringed to warrant refusal, there are two levels at which I could approach this issue (being an issue which arises, as earlier noted, from the residents’ submissions).

86 The first would be to require the applicant to undertake an ecologically sustainable justification of the entirety of the bottled water industry. The second would be to require the applicant to justify the ecological sustainability of the particular proposal in the context of the existence of the bottled water industry (and making no judgment, in itself, about the ecological sustainability of that industry in the broader context).

87 The applicant has provided statements of evidence on the assumption that I would approach this issue from the second of those propositions.

88 Although the objections which were put by the objectors are in broad terms and, prima facie, relate to the first of these possible bases for consideration of this issue, I am satisfied that this is not an appropriate instance where the applicant should be required to respond on such a basis. Indeed, absent detailed evidence or submissions challenging the ecologically sustainability of the industry in its entirety – there merely being broad expressions of concern by lay objectors – I consider I would be improperly broadening the terms of my enquiry if I were to do so.

89 I have therefore proceeded to consider whether, in the context of the existence of a bottled water industry (whether the broader industry is ecologically sustainable or not), the present activity is ecologically sustainable in such a context.

90 As earlier noted I accept the evidence from Dr Robertson as to the ecological sustainability of the impact of clearance and removal of the Southern Highlands Shale Woodland vegetation along the road reserve.

91 The evidence of Mr Lane, the single parties’ experts on hydro-geological matters (as earlier discussed) satisfies me that the water extraction element is ecologically sustainable.

92 The final two matters that therefore arise in this context are:

• the impacts of transportation of the water to the bottling facility (as I am satisfied that the bottling facilities production (post bottling) is where the product will merge with the general bottled water industry and be subsumed in the broader issue which I do not propose to consider); and
• the use of plastic bottles and their contribution to the litter stream arising from the bottling of the water proposed to be extracted from this facility.

93 Evidence provided by the applicant shows that there is an increasing demand (for reasons which do not need to be explored) for bottled water. That water is supplied, at the present time, from Australian water extraction sources and from a variety of international sources including European and Pacific Island sources.

94 As I understand the position, the water to be extracted from this facility will not be bottled and sold as a premium product but more in the ordinary consumable or generic end of the bottled water market. As a consequence, it is unlikely to compete with the European-sourced water but would compete with that from Fiji, other Pacific Island sources or non-European overseas sources.

95 To the extent that water sourced from this extraction location would act as a substitute for existing overseas-sourced water or as a deferral of increased demand for such water, I am satisfied that the transport impacts of water from this source are sufficiently likely to be less than those of overseas-sourced water as to render it ecologically sustainable (in a comparative sense) on environmental impacts of its transportation.

96 As to the bottling of the water in plastic containers, I am also satisfied, on the evidence provided by the applicant, that the demand for such products is such that the products and volumes proposed to be extracted and bottled (if the proposal is approved) would simply amount to an element of the demand for bottled water which, if not met from this proposal, would be sourced elsewhere.

97 As a consequence, I am satisfied that this substitution would not add to the amount of packaging which would enter the waste stream but will merely provide an alternative cause for an element of the waste stream which will inevitably be generated. I am therefore satisfied on the limited basis of consideration of ecological sustainability appropriate for consideration in these proceedings that this does not constitute a basis to refuse the application nor provide any contribution in any cumulative sense to refusal of the application.

The issues arising from truck movements

98 The four general issues arising from truck movements (the impacts on Jackman’s cottage as a structure having earlier been considered separately) are:

• traffic impacts through the centre of the village;
• the hill in Church Street immediately to the north of Governors Road;
• road safety issues for Bundanoon Public School; and
• amenity of residences in Governors Road.

(a) Traffic impacts through the centre of the village

99 There will be two truck movements per day to the site and the two truck movements per day from the site. As earlier noted, the truck is to be an articulated road tanker with a capacity of 37,000 litres.

100 General traffic patterns through the centre of the village reflect the fact that the village is bisected by an element of the major regional road system. This road system doglegs as it passes through the village.

101 The movements of the road tanker arising from this proposal, for movements on this element of the regional road system, I am satisfied, would have little additional impact on the general amenity of the village.

102 Further, movements to the site which involve a transition from the regional road system element of Church Street to the more village element of Church Street are undertaken without the necessity for any turn by the tanker. The return movement, from the village element of Church Street to its regional road element is one where there appeared to be more than sufficient sight lines in all relevant directions.

103 As a consequence, I am satisfied that there are no amenity or road safety issues arising from road tanker movements through the village, in a general sense, which warrant refusal or warrant contributing to refusal of the application.

(b) The hill in Church Street

104 Mr Stanton, a resident in Church Street toward the foot of the hill immediately to the north of Governors Road and opposite Governors Road’s intersection with Church Street, expressed safety concerns arising from the steepness of the hill and the possibility of accidents being caused by road tankers travelling down the hill and turning into Governors Road. Additional evidence was also given, by several of those participating in the first inspection, of the use of this portion of Church Street by groups of cyclists accessing the nearby National Park. Fear was expressed of the risk of accident to such cyclists.

105 Although the hill in Church Street is quite steep, this roadway is of conventional width and apparently well constructed. Unlike Governors Road, where there would be no opportunity for vehicles to pass, Church Street does provide sufficient space for passing manoeuvres. Although potentially also subject to adverse weather conditions as discussed below concerning the Public School, the road in this vicinity does not suffer from the risk of unforeseeable running of small children in front of an approaching truck.

106 I am satisfied that proper prudent driving on behalf of the tanker driver would make appropriate allowances for the steepness of the hill; relevant weather conditions; and the likelihood of other vehicles or cyclists along this section of Church Street.

107 Indeed, the comparative infrequency of the proposed downhill truck movement, also being movements of an un-laden tanker, causes me to accept that safety issues do not arise from the hill in Church Street.

(c) Bundanoon Public School

108 Bundanoon Public School is located in Church Street on the eastern outskirts of the village and close to the top of the hill in Church Street leading from Governors Road to the village.

109 The applicant proposes that the two truck movements per day to the site and the two truck movements per day from the site would take place during hours when pupils at the school would be likely to be in their classrooms. Thus, the applicant says, there is no safety risk for pupils at the school or risk to persons visiting the school.

110 During the course of the first site inspection, evidence was given by Ms Walker, the Vice-President of the school's Parents and Citizens Association and by Ms Versluis, the principal of the school.

111 Ms Walker gave evidence concerning a survey conducted by the Parents and Citizens Association of the methods by which children who attended the school arrived at the school in the morning or left the school in the afternoon. Given that the applicant proposes a condition that all truck movements to and from the site should take place during the ordinary hours of operation of the school, I am satisfied that there is no risk to children during the before and after school periods. Given that this restriction is proposed to operate during school holidays as well as during term time, I am satisfied that there is no such risk before or after school hours at any time of the year.

112 With respect to school holidays, Ms Walker said, as recorded in the notes of the site evidence:

During school holidays, over 90% of respondents say their children walk or ride around our village, to get to the National Park, tennis court, swimming pool, oval, the shops or their friend’s houses. Most of that activity is between 9 am and 4 pm.

113 However, I do not have any evidence as to the extent that these activities during school holidays would take place at locations where the children might be crossing Church Street unsupervised. Specifically, given that the truck movements, from the time of these vehicles reach the centre of the village, will be on what should be regarded as the main road system, I have no evidence which would need me to conclude that these school holiday activities would place unsupervised children at any particular risk from these truck movements at any location where the existing traffic movement pattern which would not ordinarily demand parental or other adult supervision.

114 Ms Versluis’s written and oral evidence relevantly concerned two (somewhat linked) matters. The first of them related to the extent and nature of the activities of the children and the circumstances under which it is possible that the children will find themselves on the roadway. The second related to the occurrence, from time to time in winter, of significantly foggy and icy weather conditions. Her evidence is uncontradicted and I accept it.

115 Ms Versluis also said, as recorded in the notes of the site evidence, after being asked by Mr McEwen to assume that truck movements would keep to the development application and hours:

Ms Versluis has permission from parents for children to walk without special permission. Sports programs are attended between 1.00 & 4 pm, and 80 students come back from sports and swimming between 10am and 10:30am. Children are coming from aerobics, and singing at Rosnel. They enjoy the freedom to walk around.

116 The risk in normal weather conditions arises from the fact that pupils run from the school grounds onto the roadway, for example to retrieve lost balls, despite attempts from the school to prevent this happening. Ms Versluis gave evidence that this had in fact occurred. As a consequence, I accept that this is a real as opposed to theoretical risk.

117 When foggy weather conditions prevailed, as I understood Ms Versluis’s evidence, these conditions reduced to almost to zero road visibility outside the school and, under such conditions, there were times when black ice was also present on the roadway in the vicinity of the school. Although I accept there would be a lower likelihood of pupils being outside and exposed to the temptations of running onto the road under such conditions, I also accept that if a pupil were to do so in the face of an articulated road tanker, the risks to the child's safety would be significantly greater than in more clement climatic conditions.

118 Thus, I am satisfied that the risks which she identifies for such foggy and icy conditions are separate from the general risks to unthinking, playing children – in that the risk of accident to a child running onto the road during these foggy and icy conditions would higher than the risk in more normal weather conditions. However, I accept there would be a lower likelihood of pupils being outside and exposed to the temptations of running on the road at such times.

119 However, the risks under both general and inclement weather conditions are foreseeable. In addition, I am satisfied, on Ms Versluis’s evidence that, although low, these risks cannot be treated as being so low as not to require any account being taken of them (cf Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12).

120 As a consequence, I am satisfied that there would be a real (but modest) road safety risk to pupils of the school occasioned by the four vehicle movements outside the school, per day, every school day, of an articulated 37,000 litres capacity tanker (whether a laden or unladen).

121 I note that, during the course of the evidence outside the school, there were two movements of a tip truck along Church Street outside the school. I accept that there are already likely to be truck movements in this vicinity and this will continue in the future. The risks that Ms Versluis raises also exist for such truck movements. However, the existence of other movements of a more serendipitous nature does not remove my duty to consider risks raised by this proposal and whether or not steps should be taken to address them.

122 Although the risks from the articulated tanker movements differ for the two types of climatic conditions discussed by Ms Versluis, neither of them is capable of being eliminated other than by elimination of these proposed truck movements past the school.

123 I certainly do not consider that this risk is sufficient to warrant refusal of the application its own right but I am satisfied that the risk is sufficient to act as a contributory element to my determination that the proposal should not be approved.

(d) Amenity of residences in Governors Road

124 The relevant elements from the Council’s planning controls against which any impact on the amenity of the residences in Governors Road must be assessed are set out above at (48) and (49).

125 The effect of the rezoning in 1994 is to render, as a general proposition, the proposed activity acceptable on the site. The effect of this general proposition, I am satisfied, is that any impacts of the activity proposed must be specific impacts arising from the particular method of implementation of the proposed activity rather than being ones which might inevitably arise from any carrying out of the proposed activity anywhere on the site.

126 Any impacts on the residents of Governors Road, because the site has two road frontages, arise as a consequence of the applicant selecting Governors Road as the method of access rather than utilising the alternative access which use possibly available through Osborne St.

127 There are four specific impacts which might arise from this application on the residences in Governors Road. The first relates to the alteration in their outlook as a consequence of the proposed removal of vegetation; the second arises from noise from the passage of the road tanker movements; the third is the issue of safety of residents from such tanker movements; and the final is the question of preservation of access to these residences during reconstruction of Governors Road.

128 If the vegetation in the Governors Road road reserve were to be removed as proposed, there would be an alteration to the outlook of the residences which face Governors Road. In particular, Mr Tomasetti accepted that, because of the closer proximity of Jackman's cottage to Governors Road, visual and other impacts on these residents were likely to be greater. However, the removal of vegetation in the immediate foreground would be replaced by more distant, but not long distant, rural views to the properties to the south. Although this would be a change in outlook, I am not satisfied that it should be regarded as an adverse change in outlook so as to warrant refusal or contribute to warranting refusal of the application.

129 As to noise from the truck movements, I am satisfied that, (particularly for Jackman's cottage given its proximity to the road reserve), there would be a degree of noise impact on the residences. The limited number of movements coupled with there being confined to hours in the middle of the day satisfies me that this impact would be comparatively insignificant. A different circumstance might arise if the number of truck movements were greater than that for which approval is sought. Although this impact would have some significance when it occurs, particularly to Jackman's cottage, I could not be satisfied that it warranted refusal of the application. However, it is a minor detriment as a contribution to the refusal to an insignificant extent.

130 A similar position applies to safety issues as arises with respect to noise impacts on these residences. Although be present number of truck movements proposed will undoubtedly increase road safety risks for residents, particularly for any children resident in Jackman's cottage given its proximity to Governors Road, I am satisfied that the small number of daily truck movements also makes this a very minor detriment which contributes to the refusal to an insignificant extent.

131 Evidence from the applicant’s road construction expert, Mr Rootsey, satisfied me that uninterrupted access to the residences fronting Governors Road could be maintained during the reconstruction process for Governors Road. Even if there were to be some minor inconvenience, I am satisfied that it would not warrant any contribution to refusing the application.

Impact on the Millers’ property

132 Mr and Mrs Miller, the neighbours immediately to the west of the site, have a 10 acre allotment. This allotment has frontages to streets to the north and Governors Road. The Millers’ dwelling is located at the northern end of their property and is accessed from the north. It was obvious from the view that the southern element of this property fronting Governors Road is at present entirely undeveloped.

133 The Millers object to the proposal on a variety of general grounds which they share with other members of their community who have objected to the proposal. However, they also raise a number of objections which are specific to the impact on their own property.

134 Mr Miller’s evidence concerning his and his wife's future intentions for their property were summarised in the notes of the on-site evidence of the first view in the following terms:

Mr Miller is adjacent property owner, with 10 acres that run-up to the boundary and near Jackman’s Cottage. He has concerns regarding stormwater, the shed and access road. Mr Miller's wife works at Solar Springs and could not attend. He said the whole development would have a huge visual impact, with a security fence (height not given) perhaps topped with barbed wire. The new shed 18m x 8.25m is within 3 metres of his boundary and there will be a link/loop road 60 m x 40 m. He won’t see the new development from his house as it will be shielded by woodlands. He bought his property for two reasons – its peaceful location and stress-free environment with birds, snakes, wombats, 8-9 kangaroos, miniature horses and alpacas. This peaceful amenity would be destroyed.

He has a 10 acre property, which provides him with stress relief as he is a school teacher. The shed and fence would be a monstrosity.

His property can be redeveloped, given its size, but he does not intend to sell at this stage. However, in the future he proposes to break up the property into two 5 acre lots – sell one lot and giving the other to his daughter. Imagine advertising the locality of the property. Who's going to buy next to an extraction plant?

135 Mr Miller and his wife also lodged a separate written objection concerning the proposed development.

136 Their objections concerning specific impacts on their own property can be considered in two parts.

137 The first, which does not warrant extensive consideration, concerns the proposed security fence which the applicant seeks to have erected along the boundary with the Millers’ property (for part of its length) and enclosing a compound for the operations facilities. Although somewhat out of context in the present immediate rural surroundings, I am satisfied that this fence would not be unacceptable in this location. In any event, such a fence is not incompatible with styles of some rural fencing used for the enclosure of livestock such as deer. Further, had I concluded to the contrary, Mr Tomasetti, had indicated that the applicant would have been content if I were to require some alternative form of fencing as a condition of consent.

138 The Millers’ second concern relates to the impact of the proposed structures on any future development of the southern element of their property fronting Governors Road.

139 This requires consideration of structures proposed to be erected on the site in the secure enclosure and to consider them in the context of such of the Council’s planning controls as might be relevant.

140 During the course of the first hearings, Mr McEwen took me to the provisions of an appendix to the Rural and Residential Development Control Plan which applies both to the site and to the Millers’ property. A reading of the terms of the Development Control Plan, Mr Tomasetti said: “should lead me to conclude that the setback provision contained in the appendix to the plan is one which, on a coherent reading of the document, could only apply to a dwelling and thus require an 8 m setback from the front boundary rather than to requiring an industrial style shed such as that which is proposed in the application to be so setback”.

141 During closing submissions Mr Staunton, junior counsel for the respondent, submitted that the use of building in the appendix which differs from the language used elsewhere in the document of dwelling house should cause me to conclude that the front setback was required of any building rather than merely of dwelling houses.

142 Mr Tomasetti submitted that I should not seek legalistic precision from the drafters of such documents but that I should view the document in effect thematically and therefore as not applying to such structures.

143 If the Council’s position were to be accepted, the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 would become relevant and would require me to use the provisions of the development control plan (including this setback requirement) as the starting or focal point for my consideration.

144 I am satisfied that there is sufficient ambiguity about the intention of the document that the appropriate course is to undertake the more general assessment of the particular proposal against the objectives of the LEP as a precursor to considering whether there is any specific disability created by the Development Control Plan.

145 I turn therefore to consider the impact of the proposal on the Millers’ property. The Millers’ property, the Council agrees, can be subdivided as Mr Miller has described. Indeed, the applicant has provided material contained in a 1994 report which shows that the site itself could be subdivided into eight or nine residential allotments, each of which would theoretically satisfy the minimum allotment size requirement 4000 sq m in the Council’s planning controls.

146 Mr and Mrs Miller's objection to the proposed structures near their boundary formed part of a written objection they lodged with the Council in 14 November 2007. These objections are to both the size and location of the proposed structure. They objected specifically to the statement in the application that the proposed development will not be visually prominent within the existing landscape. They described this statement as quite ludicrous.

147 I did not observe, during the course of either of the inspections, and have not seen anything in the material tendered by the applicant that demonstrates that there is some imperative (apart from convenience) for these structures to be located where they are proposed – immediately adjacent to the Millers’ eastern boundary.

148 Specifically, there has been no discussion and I have no evidence about whether or not the present bore can be utilised with the attendant facilities being located some further distance from the Millers’ boundary (with the water being piped from the bore head to those such alternatively located facilities).

149 The minimum size for an allotment in this zone is 4000 sq m. Setting aside the question of whether or not a front setback is required by the Development Control Plan and in the context where, even if applicable, Development Control Plan requires no minimum side boundary setback, it nonetheless remains appropriate to consider whether or not, in the context of this semi-rural setting with development potential available (and, on the evidence of Mr Miller, proposed to be availed of), it is reasonable to permit the erection of a quasi-industrial structure, the size of a very large rural shed, almost on the boundary with the adjacent property when there is no evidence as to why (apart from mere convenience) it could not be located elsewhere on the site.

150 Given the very small side setback (1800 mm) proposed to the boundary with the Millers’ property and the height (9 m) and length (18 m) of the proposed shed, there is no functional prospect of any screening landscaping being erected on the applicant’s property to soften the presentation of this structure to the neighbouring property to the west.

151 In an ordinary planning sense, given that there are no other obvious constraints apart from convenience, the present proposal is a very poor planning and design outcome. To propose a structure of the size envisaged with such a trifling setback from a boundary, on an ordinary greenfields site, entirely ignores, it seems to me, the development potential of the southern element of the Millers’ property fronting Governors Road. In the ordinary course of events, I am satisfied the appropriateness of siting of any such structure should have been considered in preparation of this application.

152 As there is no dwelling on the southern portion of the Millers’ property nor any identified or required development dwelling footprint on it which would have enabled an accurate assessment of the extent of impact of the proposal at such a dwelling, it is sufficient that I observe that the location of the proposed structures is inappropriate as they will create an adverse constraint on siting any dwelling which might be erected, in future and post subdivision, on the southern element of the Millers’ property fronting Governors Road.

153 It might well remain possible to site such a dwelling on the southern element of the Millers’ land at a location sufficiently removed from the applicant’s structures in order to minimise such an impact and for any necessary screening landscaping to be provided on the Millers’ land to screen the applicant’s proposed structure. Nonetheless, the necessity to do so imposes a significant constraint on the development potential of the Millers’ land and does so unnecessarily.

154 I do not consider that this impact is determinative and do not refuse the application on this basis alone. It is, however, nonetheless a matter which, on my assessment, goes close to warranting refusal itself.

Refusal and the objects of the Environmental Planning and Assessment Act 1979

155 The range of permitted uses in a zone only sets the limits for an assumption that, in some form, development which is consistent with the zoning will be permitted. The Minister’s rezoning in 1994 added a use so that the property might be used for the additional purpose for which it had then been rezoned - namely the extraction of water, However, this rezoning did not create a presumption that such use would be achieved – merely that an owner would be permitted to have its acceptability tested against the assessment criteria in s 79C of the Environmental Planning and Assessment Act 1979 (see McClellan CJ in BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 at para 117).

156 Although the Minister’s rezoning might lead a lay observer to make a presumption that the land is capable of being used for this additional purpose, consideration of any such use is necessarily tempered by the consideration of the overall environmental constraints which might apply to that particular proposal seeking to take advantage of the particular, now permitted, use. In the present instance, I am satisfied that the constraints of the present proposal render it inappropriate.

157 If I be wrong on this point, I am satisfied, however, that my refusal of the present application does not have the effect of saying that there is no possible way by which the site, generally, could be used for that purpose. I am merely saying that this application to do so – the present pump and storage facilities coupled with access via Governors Road – is unacceptable.

158 I am certainly satisfied that, in this instance, by refusing the present application, I am not determining that the property is incapable of being used in any fashion whatsoever which would give effect to the use permitted by the Minister’s rezoning.

159 As earlier observed, the property has road frontages not only to Governors Road but also to Osborne Street to the north. No evidence has been given in these proceedings (either by the applicant or by the Council) about whether or not access for the purposes of a water extraction facility might be possible using access via the Osborne Street street frontage. I was not invited to inspect that street frontage and it has not been a matter of any merit consideration in these proceedings.

160 Whether such access is or is not a viable alternative to the present proposal for access along Governors Road would be a matter to be considered on any application for such use and not for my speculation. A similar position obtains for any application for a differently located and designed water extraction and storage facility on the site.

161 As a consequence, I am satisfied that my refusal of this application is not inconsistent with the objects contained in s 5(a)(ii) of the Environmental Planning and Assessment Act 1979.

162 In summary, those impacts which I have found to be unacceptable are:

• The removal of vegetation from Governors Road;
• The passage of articulated heavy tanker vehicles along Governors Road;
• The risks to children of school;
• The impact on the development potential of the Millers’ property;
• The risk of damage to trees on properties adjacent to Governors Road being caused by the proposed construction of Governors Road.

163 I have concluded that there is only single reason which is determinative and requires refusal of the application. That impact is that which would flow from the change in nature of Governors Road [as described at (54)].

164 Further, I am satisfied that the range of other impacts which are unacceptable, when taken in combination, separately lead to the application being unacceptable. However, I have concluded that it is not necessary for all of these impacts to be present for the proposal to be rendered unacceptable.

165 I should make it clear that, of the non-determinative impacts, the impact on the Millers’ property is more significant than the other impacts. If the impact on the Millers’ property were to be eliminated (by the relocation of the proposed structures to an appropriate location on the applicant’s property where sufficient landscaping could be provided), the totality of these other impacts, when taken together, would not warrant refusal of the application.

166 As a consequence, it follows that orders of the Court are:

1. The appeal is dismissed;
2. Development application LUA 07/1170 for the erection of a water extraction plant; associated parking and turning facilities and the reconstruction of Governors Road is determined by the refusal of development consent; and
3. The exhibits are returned.

Tim Moore

Commissioner of the Court

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