Visionary Investment Group Pty Ltd v Wollongong City Council

[2019] NSWLEC 1234

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234
Hearing dates:	20–23 November 2018; 12-13 December 2018; 6 February 2019
Decision date:	30 May 2019
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court directs: (1)   The Respondent is to file proposed draft conditions of consent amended in accordance with the Schedule attached by close of business on Friday 14 June 2019. (2)   The Applicant is to file a response to the Respondent’s draft conditions by Friday 28 June 2019. (3)   If the parties do not agree on conditions, each party is to file short submissions identifying the competing versions by Friday 12 July 2019. (4)   The parties are to approach the Registrar for dates in the week beginning 22 July 2019 for a final hearing. (5)   Liberty to reapply on 2 days’ notice.
Catchwords:	DEVELOPMENT APPLICATION – subdivision – community title – owner’s consent – golf course – contamination – streambank stabilisation – availability of water and wastewater infrastructure – assessment of off-site impacts – Grampian condition
Legislation Cited:	Biodiversity Conservation Act 2016 Byron Shire Local Environmental Plan 1988 Community Land Development Act 1989 Community Land Management Act 1989 Conveyancing Act 1919 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Fisheries Management Act 1994 Muswellbrook Shire Local Environmental Plan 2009 Natural Resources Access Regulator Act 2017 Rural Fires Act 1997 State Environmental Planning Policy No 55– Contamination of Land Sydney Water Act 1994 Threatened Species Conservation Act 1995 Water Management Act 2000 Wollongong Local Environmental Plan 2009
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Associated provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223 Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services Ltd (1997) 95 LGERA 86 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 British Railways Board v Secretary of State for the Environment and London Borough of Hounslow 1992 65 P. & C.R. 402 British Railways Boards v Secretary of State for the Environment and Others [1993] 3 PLR 125 Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399 Eastbrook Pastoral Pty Ltd v Muswellbrook Shire Council [2014] NSWLEC 1144 Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7 Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 S.C.(H. L.) 58 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Jones v Secretary of State for Wales and Ogwr Borough Council (1991) 61 P. & C.R. 238 McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24; [2004] FCAFC 190 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212 Narden Services Ltd v Secretary of State for Scotland 1993 SCLR 434 Newbury District Council v Secretary of State for the Environment [1980] 1 All ER 731 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and with Stoneco Pty Limited [2010] NSWLEC 48 Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 132 Scott v Wollongong City Council (1992) 75 LGRA 112 Serafina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 2009 Stokes v Waverley Council [2019] NSWLEC1137 Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598
Texts Cited:	2012 EPA Standard for Ground Gas Monitoring Guidelines for the Assessment and Management of Sites impacted by Hazardous Ground Gases Contamination Planning Guidelines SEPP55 – Remediation of Land Natural Resources Access Regulator 2018 Guidelines for Controlled Activities on Waterfront Land NSW DPI Policy and Guidelines for Fish Habitat Conservation and Management (2013) NSW RFS Planning for Bushfire Protection 2006 S Fairfull and G Witheridge, “Why do fish need to cross the road? Fish Passage Requirements for Waterway Crossings” (2003) NSW Fisheries Scottish Executive, Central Research Unit, The Use and Effectiveness of Planning Agreements, (2001) Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	Visionary Investment Group Pty Ltd (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: T Robertson SC (Applicant) M Wright SC (Respondent)   Solicitors: Mills Oakley (Applicant) Wollongong City Council (Respondent)
File Number(s):	2017/196133
Publication restriction:	No

Judgment

Introduction

1. This is an appeal by the Applicant, Visionary Investment Group Pty Ltd against the deemed refusal, by the Respondent, Wollongong City Council, of development application number DA 2016/1019 as amended on 22 August 2018. The appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) (at the time the application was made, it was under s 97(1) of the EP&A Act as then numbered).

2. The development application was first made on 28 June 2016 and was refused on 28 June 2017.

3. The Council officer’s assessment report is in Exhibit 2 at Tab 25. In this report, the officer states that a lack of clarity in the application and supporting documentation precluded making proper assessments of critical parts of the application.

4. Mr Wright SC, for the Respondent, notes in his submissions (at paragraphs 7 and 8) that:

“7 Throughout the course of the proceedings, the Applicant has continually provided further information in support of the development application. The Council, through its officers, has expended an inordinate amount of time and public resources in responding to this continual flood of further information.

8 Despite the significant time that has passed since the application was filed, the prolonged conciliation conference and the continual conferencing between experts, the Applicant has still failed to demonstrate that it can create a subdivision for residential purposes that has adequately addressed these constraints inherent in the site in compliance with the Council's controls.”

5. The flow of new information continued during the hearing with amendments to a number of expert reports (and, for some, amendments to amendments), and, almost at the death, the appearance of a substantial amount of data, previously unconsidered, relating to possible contamination of the site.

6. To respond to these new data and to clarify some other issues, it was necessary for the Applicant to seek to amend the application at the hearing on 6 February 2019. I granted leave.

7. The flow of information continued even after the end of the hearing. On 8 February 2019, BioBanking agreement ID No. 422, under the Threatened Species Conservation Act 1995 (TSCA) was signed between the Minister for the Environment and the landholders of The Huntley (being the VIG group of companies) (‘The Huntley’ is the name of the larger area of which the land the subject of the application is part). A draft of the agreement, dated November 2017, had been admitted as Exhibit H. The signing of the agreement has no direct relevance to the decision-making process in this matter, but the draft version is mentioned in a number of the proposed conditions which require fencing between the BioBanking site and the development. The BioBanking agreement does not apply to any of the areas the subject of DA 2016/1019, but to other parts of The Huntley. The identification of areas subject to the BioBanking agreement in close proximity to the proposed development emphasises the significance of the area for biodiversity conservation, and hence the need for careful assessment of environmental impact. The signing of the agreement is also indicative of the wider consultations which have been occurring over a long period, and that bringing matters to a conclusion is not a speedy process.

8. Mr Wright, during the hearing, several times expressed concern about the proceedings becoming ‘a movable feast’. While the matter has been unusual in the number of changes that have occurred and the length of the process, seeking to resolve matters by negotiation is to be encouraged, although there must be limits to the length of the period it takes and the cost involved.

9. Two days after the refusal of DA-2016/1019 was issued, a Class 1 application was filed in respect of deemed refusal of the development application.

10. On 1 November 2017, a s34 conciliation conference commenced on site. I presided over the conference.

11. The conference started on the Site-South, (i.e. south of Avondale Road), where the proposals were outlined by the Applicant and some of the experts. The Martins, who had made written submissions following the public notification of the proposal (the submissions are in Exhibit 2, Tab 31), are adjoining landholders, and some of the streambank stabilisation works proposed are on part of Lot 18 DP 3083, which is part of the Martins’ property.

12. During his oral presentation, Mr Martin outlined some of the flood events which Mullet Creek had experienced. His written submission was illustrated with images of a recent flood event, with Mullet Creek in spate. He stressed that because of the location future floods were inevitable. An issue raised in the written submission was that Mr Martin held a water licence permitting extraction of water from Mullet Creek for farm use. He emphasised the importance of maintaining his access to the pump and his continuing use of it as part of his farming operation. He also addressed the heritage significance of the area for both the Aboriginal community and for European history.

13. The parties and their experts then moved on to Site-North where various features were explained and particular attention was played to Mullet Creek and the riparian corridor.

14. At the commencement of the hearing in Court in November 2018, the Applicant showed imagery taken from a drone, which provided an overview of the site and its surrounds (Exhibit Q).

15. After completing the inspection, the parties adjourned to Wollongong City Council chambers, where discussions occurred between the experts. After a number of mentions of the matter in the following months, a further meeting of experts was held in Wollongong on 16 March 2018. As there appeared to be no prospect of a resolution of issues in the short-term, the s34 conference was terminated.

16. On 22 August 2018, the Applicant was granted leave to rely on amended plans. The plans and associated documents were tendered at the hearing as Exhibits A and B.

17. After the first version of the proposal had been received, Council had made internal and external referrals, and had conducted, as required, a public notification process.

18. After the termination of the s34 process, the Council recommenced the referrals and notifications.

Statutory controls

19. The relevant statutory controls are documented in the Amended Statement of Facts and Contentions (ASOFC) (Exhibit 1) at paragraphs 48 – 110, from which key elements are discussed below.

20. The applicable local planning instrument is the Wollongong Local Environmental Plan 2009 (WLEP) which is supported by the Wollongong Development Control Plan 2009 (WDCP).

21. The Huntley site as a whole contains land in the R2 Low Density Residential zone, the RE2 Private Recreation zone, the E4 Environmental Living zone, the E3 Environmental Management zone and the E2 Environmental Conservation zone. The distribution of lands in the different zones is shown in the land zoning map – sheet LZN_004 (Exhibit 2, Tab 4).

22. The land to which the proposal applies is predominantly in the RE2 zone, which is the zone applying to the proposed golf course and R2 where the housing precincts are situated. A number of the future housing lots are split zoned, with both RE2 and R2 components. (A small part of Lot 18 DP 3083, land in which some stream stabilisation works will occur and which is not part of the Applicant's land, is zoned RU2 Rural Landscape). The northernmost of the proposed housing precincts (Stage I North) has boundaries with RE2, E2 and E4 zoned land.

23. The objectives of the R2 Low Density Residential zone are:

Zone R2   Low Density Residential

1   Objectives of zone

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

and the zoning table provides that

2   Permitted without consent

Home occupations

3   Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental facilities; Exhibition homes; Exhibition villages; Group homes; Health consulting rooms; Home-based child care; Hospitals; Hostels; Information and education facilities; Jetties; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Residential flat buildings; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing; Shop top housing; Signage; Tank-based aquaculture; Veterinary hospitals

4   Prohibited

Any development not specified in item 2 or 3

24. The objectives of the RE2 Private Recreation zone are:

Zone RE2   Private Recreation

1   Objectives of zone

•  To enable land to be used for private open space or recreational purposes.

•  To provide a range of recreational settings and activities and compatible land uses.

•  To protect and enhance the natural environment

and the zoning table provides that:

3   Permitted with consent

Animal boarding or training establishments; Aquaculture; Boat building and repair facilities; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Centre-based child care facilities; Community facilities; Entertainment facilities; Environmental facilities; Environmental protection works; Extensive agriculture; Function centres; Kiosks; Markets; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Respite day care centres; Restaurants or cafes; Roads; Signage; Take away food and drink premises; Water recreation structures

4   Prohibited

Any development not specified in item 2 or 3

25. Clause 7.4 Riparian Lands of the WLEP states:

7.4   Riparian lands

(1)  The objective of this clause is to ensure that development does not adversely impact upon riparian lands.

(2)  This clause applies to land shown as “riparian land” on the Riparian Land Map.

(3)  Despite any other provision of this Plan, development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land.

26. The Riparian Lands Map shows, on the subject land, Mullet Creek and tributories (WLEP map sheet CL 1_004 Exhibit 2, Tab 13).

27. Earthworks are proposed in parts of the development, most extensively in Stage I North. Clause 7.6 of the WLEP applies:

7.6   Earthworks

(1)  The objectives of this clause are as follows:

(a)  to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land,

(b)  to allow earth works of a minor nature without separate development consent.

(2)  Development consent is required for earthworks, unless:

(a)  the work is exempt development under this Plan, or

(b)  the consent authority is satisfied the work is of a minor nature.

(3)  Before granting development consent for earthworks, the consent authority must consider the following matters:

(a)  the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b)  the effect of the proposed development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or of the soil to be excavated, or both,

(d)  the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material or the destination of any excavated material,

(f)  the likelihood of disturbing Aboriginal objects or other relics,

(g)  proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

28. WDCP applies to the site. This is a comprehensive document divided into a number of chapters.

29. Chapter D16 West Dapto Release Area applies to a large area of land west of Dapto which has been identified as an area where extensive urban development will occur. The chapter applies to the site.

30. I note that included within Chapter D16 is Figure 6.3.8.1 Avondale Road North, Huntley Neighbourhood Plan.

The current Neighbourhood Plan for the site. Source: Wollongong DCP 2009 (version current in December 2018)

31. Wollongong City Council resolved on 3 August 2015 to adopt the Huntley Avondale Road Neighbourhood Plan as an amendment to Chapter D16 of the WDCP, and Figure 6.3.8.1 appears in WDCP in its currently available form. An enlarged version of the plan appears in Exhibit A, Tab 2(B) which shows that the map was created by Urbis on 29 July 2014.

32. The layout shown in Figure 6.3.8.1 indicates three residential precincts, in roughly the same locations as in the present proposal but with different lot layouts, with access to Stage I North and Stage I East being from Cleveland Road rather than Avondale Road, and with fewer detention ponds. The number of lots in the Neighbourhood Plan is higher than in the current proposal. The Neighbourhood Plan shows that the intention for residential development on the site has been known for a long time, and that over the years, the proposal has been reworked to its present form.

33. The WDCP, in Chapter E15 Water Sensitive Urban Design, demonstrates Council's intent to promote Water Sensitive Urban Design (WSUD), a concept which Mr Robertson SC highlighted as something that is strongly endorsed by the Applicant, and which is reflected in the design for the proposal.

The proposal

34. The site is an irregular shaped area bounded to the south by Avondale Road and to the east by Cleveland Road.

35. The proposal has been identified by the Applicant as being for the Stage I subdivision within the larger Huntley site and includes a community title subdivision to create 99 residential lots and one community title lot, one residual Torrens title lot, earthworks, civil works, landscaping, installation of utilities and amendments to the layout and landform associated with the previously approved golf course.

36. The residential component of the proposal is divided between three residential precincts – Stage I North will consist of 65 residential lots and occupies the steepest part of the site, Stage I East would be 26 residential lot and Stage I South will have eight lots and an Aboriginal cultural heritage centre and keeping place. Although Stage I East, on the eastern side of the site is adjacent to Cleveland Road, there will be no access to Cleveland Road; access to the site will be from Avondale Road.

37. It is proposed that the residential lots be community title (Community Land Development Act 1989) and the management of the community scheme will be through a Community Association (Community Land Management Act 1989). The roads within the site will be open access – although they will be part of the community title and be managed and maintained by the Community Association, members of the public (and service vehicles such as garbage trucks and emergency service vehicles) will have unrestricted access to the site from Avondale Road and the roads will present as a continuation of the public road.

34. The proposal is for subdivision and associated works but not for any dwellings. However, the Applicant's intention is that the lots will be sold as land in the house packages, and a portfolio of house designs is presented in Exhibit B, Tab 2. The arrangement for the houses was discussed during the hearing in the following terms:

“ROBERTSON: Just assume that the product here, if I can use that expression, will be constrained by a particular design framework that the applicant has put forward. The fact then that some of the lots are constrained is simply something that the applicant accepts and is able then to produce a design to meet that smaller building envelope. If that's the case and if the consent is conditioned to require that kind of concept design, then there won't be the difficulty that you face on other sites with the market driving the need to flatten and expand the building area of the land, will there?

WITNESS HEAVEN: And again sort of going back to my expertise not being a house designer or, there's probably two issues here. One is whether or not those house designs as presented are consistent with the land form. That I can't answer. But it's inherent in any site that's heavily constrained that it's a little bit of a buyer beware scenario. So if you buy into there, I'm assuming that you're buying into their understanding what the constraints are and what you need to deal with.

ROBERTSON: Mr Williamson, have you got anything to add to that?

WITNESS WILLIAMSON: I do not.

ROBERTSON: There is, Commissioner, behind tab 8 in exhibit B, a housing concept design check list. And then an indication of the different types of houses proposed for each of the lots. Those houses are specifically designed to deal with land form changes, although they're shown on the plans, on each of the plans, and each of the dwelling types are indicated. Now obviously this is conceptual, but a genuine attempt has been made to mix and match particular designs of dwellings to particular sites. And that was done as well to demonstrate various forms of shadow analysis. In any event, the exercise was undertaken on each lot to see--

COMMISSIONER: If a purchaser was quite taken by one of these designs and wanted to construct something that's in here, do detailed architectural designs exist that would enable construction, or?

ROBERTSON: We going to build it. We're not selling, we're not selling land blocks. We're going to build the, each of the houses and sell the land and house as a package. And the design, I think the house designs had been done by the architect. But the intention is that once the subdivision and earthworks DA is granted, then we'll come back with a second DA, or perhaps a CDC, depending on whether council makes a DCP enabling us to do it that way. With a complete design, we'll design out the whole of the site and we'll build it. And we're prepared to accept if necessary a restriction to that effect in the development consent, which ensure that we'll keep control of the site and implement the engineering plans.

The problem which I think Mr Heaven's adverted to is that a sub-divider comes along, does the earthworks and subdivision, and then sells the land instead of building And so someone else comes in who hasn't had any of the experience of the design process and wants to maximise the square meterage of the house on the site. And that sometimes is contrary to the original design concept. By doing everything ourselves, we keep control of that.

COMMISSIONER: Right, so the discussion, what people want, is constrained by the fact that you've got to tell them what they're going to get.

ROBERTSON: Correct. That's correct.

WRIGHT: Well in a commercial sense. I'm not sure that's going to be the case in a development control sense.

ROBERTSON: Well it's a matter for council. If they wish to propose a condition, we'd probably accept it, even if that condition is more severe or more constrained than in other subdivisions. Because the whole point of this is that this is just one part of a much larger land parcel, and we're producing an 18-hole golf course of an international standard, and we expect to have international visitors from around the world. And we need to provide that element, the tourist element of the development, and the residential will hopefully pay for it. I mean from a financial or commercial point of view, that's the intention. But the golf course goes hand in hand with the marketing, if you like, of the produced product. So anyway, that's the idea…”

(Citation of Mr Williamson, expert for the Applicant and Mr Heaven, for the Respondent – Tcpt, 23 November 2018, p 28(29-50), p 29(1-49))

39. The Illawarra Escarpment (“Escarpment”) is an impressive landscape feature which forms the western backdrop to the Illawarra Coastal Plain. North of Wollongong, the Escarpment is close to the coast but as it trends to the south-west, the Coastal Plain widens. The position of the subject site in relation to the Escarpment is shown in Figure 2 in Exhibit A, behind Tab 2.

The site is approximately 17km south-east of Wollongong. The Escarpment is represented by the grey line, trending north-east to south-west to the west of the site. Source: NearMap

40. The Escarpment generates its own local weather conditions, including high rainfall episodes potentially leading to flood events below the foot of the Escarpment. The occurrence of such events is one of the challenges that any development in the area must face.

41. The development application which is the subject of these proceedings is referred to as Stage I of an integrated golf resort and residential estate to be known as “The Huntley”. The larger planned estate will, subject to approvals, “include a championship golf course and associated facilities, including clubhouse, with golf lodge accommodation and biomechanics and sports education centre” (Exhibit A, Tab 2, section 1.0), as well as villas and future stages of residential subdivision and housing.

42. The DA is for approval for earthworks and civil works, subdivision, landscaping, utilities and stormwater infrastructure with proposed residential development of the Stage I site. The location of the area the subject of the DA, and its relationship to the total Huntley site is shown in Figure 1 in Exhibit A, Tab 2.

The subject site and the overall Huntley release area

Source: NearMap

43. The Stage I site is bounded to the south by Avondale Road, and to the east by Cleveland Road.

44. The utilities referred to in the brief description given above will be situated wholly within the site. The provision of utilities to the boundary of the site gave rise to a major contention between the parties, which will be discussed later in this judgment.

45. The site was previously part of the Huntley Colliery between 1946 and 1989. Coal mining has ceased and the proposed development of the overall site includes rehabilitation of those parts affected by former coal mining operations.

46. In 2011, the Southern Joint Regional Planning Panel approved DA 2009/1037 for the construction of an 18 hole championship golf course and clubhouse, golf lodge accommodation and sports and education centre. Two modifications to the consent have been approved subsequently by the Council (DA-2009/1037/A on 31 May 2011 and DA-2009/1037/B on 13 September 2013). The first of the modifications was a change in the wording of Condition 89, and the second involved the relocation of the access road to the clubhouse and consequent repositioning of associated buildings and car parking, and relocation of golf holes and tree removal.

47. Construction works relating to the golf course approved in DA 2009/1037/B have subsequently commenced south of Avondale Road.

48. DA 2016/1019 sought consent for subdivision and associated works for eventual residential development overland the contained part of the golf course approved by DA 2009/1037. Subsequent to the granting of DA 2009/1037, there were amendments to zone boundaries in parts of the land containing the proposed golf course, with the effect that the area of residential zoned land was increased, creating inconsistency between the proposed golf course and the land zoning. The residential subdivision proposed in DA 2016/1019 is consistent with the current zoning of the land.

49. Consequently, it will be necessary to change the layout and location of the approved golf course holes north of Avondale Road so that the golf course does not encroach onto land zoned for residential development. Modification of the layout is also required to address impacts of the proposed access road to Stage I which crosses the golf course, and to incorporate stormwater detention basins. Some bulk earthworks are also proposed on the golf course north of Avondale Road, so that modifications of conditions of consent in DA 2009/1037 which currently exclude bulk earthworks will be required.

Is there owner’s consent for making the development application?

50. When the Applicant first submitted the development application to Council, the proposed development was specified as occurring on various parcels of land, all within the ownership of the Applicant.

51. By the time the hearing of the matter commenced in November 2018, further investigation had taken place both to establish the nature of bank stabilisation works required along Mullet Creek and to determine the areas within which those works would need to occur.

52. Mullet Creek flows in a generally north-easterly direction across the site. At the north-east corner of the site Lot 2 DP 549152, which is owned by the Applicant, adjoins Lot 18 DP 3083, which is not within the Applicant's ownership. The boundary of Lot 18 DP 3083 is of an irregular shape, and the bed of Mullet Creek is included within the lot. In its final form, the application before the Court requires that some of the bank stabilisation works proposed are within Lot 18 DP 3083.

53. The development application before the Court thus encompasses proposed works to be carried out on land in the ownership of two entities – the majority of the site being owned by the Applicant and Lot 18 DP 3083 by C. & M. A. Martin Pty Limited.

54. An environmental planning instrument may require that certain forms of development may not be undertaken on land except with development consent (s 4.2(1) of the EP&A Act), with consent arising from a determination of a development application. If the development proposed is categorised as a type of development which, in the zoning table of the applicable local environmental plan, is permissible with consent by virtue of the zoning of the land on which the proposed development will be situated, then the proponent must cause a development application to be submitted to the relevant consent authority.

55. Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) provides that the development application must be made:

49 Persons who can make development applications

(1) A development application may be made:

(a) by the owner of the land to which the development application relates, or

(b) by any other person, with the consent in writing of the owner of that land.

56. A development application is required to include the relevant information specified in cl 50(1)(a) of the EPA Reg:

50 How must a development application be made?

(1) A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1 …

57. Schedule 1 of the EPA Reg specifies in Part 1 C1 information that is to be contained in a development application:

Part 1 Development applications

1 Information to be included in development application

(1) A development application must contain the following information:

(a) the name and address of the applicant,

(b) a description of the development to be carried out,

(c) the address, and formal particulars of title, of the land on which the development is to be carried out,

…

(i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner’s consent is required by this Regulation …

58. Without owner's consent, a development application is incomplete and cannot be determined (Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (Al Maha); Stokes v Waverley Council [2019] NSWLEC 1137).

59. The ‘land to which the development application relates’ encompasses all parcels of land on which work or activities are proposed; thus, as in the present circumstances, consent from more than one owner may be required. Owners’ consents in relation to the application were included in Exhibit 13 at Tabs 5 and 6.

60. At the commencement of the hearing Mr Robertson acknowledged that owner's consent for work on Lot 18 DP 3083 had not been obtained, but discussions between the Applicant and the owners of Lot 18 were in progress and the consent would be forthcoming.

61. However,

“the failure of the development application to contain evidence of the owner's consent at the time it is made does not render the development application invalid or void” (Al Maha at [96] per Preston CJ of LEC).

The defect can be cured at any time up to immediately before a consent authority determines the application.

62. During the course of the hearing a letter written on 10 December 2018 over the signatures of Robert and Elizabeth Clare Martin, directors of C. & M. A. Martin Pty Ltd was tendered (Exhibit LL). This was in the following terms:

“C. & M. A. Martin Pty Limited is the owner of the land Lot 18 DP 3083 which adjoins Lot 2 DP 549152, part of the site the subject of the proposed development.

We understand that the applicant is proposing to undertake bank stabilisation works to a portion of Mullet Creek the subject of the proposed development described above.

C. & M. A. Martin Pty Limited hereby gives its consent to the lodgement/making of development application DA-2016/1019 by or on behalf of Visionary Investment Group Pty Ltd, which involves the carrying out of bank stabilisation works to a portion of Mullet Creek located in the south eastern corner of Lot 18 DP 3083, in conjunction with the proposed development described above. This letter of owner's consent is given pursuant to clause 49 of the Environmental Planning and Assessment Regulation 2000.

This letter of owners consent authorises the making a determination of the development application, but does not of itself authorise the carrying out of any works upon or within our land, as any such physical works are to be the subject of a separate prior written agreement between ourselves and the developer, including suitable conditions and indemnities in our favour.”

63. The third paragraph of the letter gives consent to the making of the development application pursuant to cl 49 of the EPA Reg.

64. The fourth paragraph, however, on its face goes further. It authorises the determination of the application. The process leading to a determination requires owner's consent for the making/lodging of the application; the making of the determination by a consent authority does not require authorisation by any other party. If consent is granted that which is consented to must be related to what was in the original application. The granting of consent would not, in any way, reduce the rights of the Martins as property owners. There would still be a need for the Applicant and the owners to conclude an agreement permitting the Applicant access to the land, and this might impose conditions. If the owners do not reach agreement on access, the consent could not be acted upon. As part of the negotiations, the owners could not alter the approval – if agreement could only be reached if changes were made to the proposal then it would be necessary for the Applicant to separately make an application seeking to alter the consent.

65. I conclude that the third paragraph of the letter constitutes the required owner’s consent; the matters in the fourth paragraph of the Martins’ letter are additional to, and not part of the owner’s consent and thus the necessary prerequisite for consideration and determination of the application has been met. The situation differs from that in Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212 (“Mulyan”) where Lloyd J concluded that an owner's consent purported to have been given by Mulyan was not a consent. In Mulyan, the landowner provided a document which gave the second respondent consent to submit a development conditional upon the second respondent having been successful in litigation against Mulyan in a different court (the Equity Division of the Supreme Court). Mulyan also raised three proposed conditions of consent said to be conditions precedent to making the development application (involving additional works). Lloyd J found that a conditional consent was not a consent, but that the owner could have withheld consent.

The evidence

66. Joint reports of experts were tendered in a number of areas of expertise:

Area of Expertise	Applicant	Respondent
Visual Impact	Philip Pollard	Vivian Lee
Planning	Paul Robilliard	Vivian Lee
Flooding and Stormwater	Drew Bewsher	Mathew Carden
Civil Engineering	David Williamson	Andrew Heaven
Ecology	Lucas McKinnon	Brett Morrisey

67. The joint reports deal with matters which were put forward as contentions. Before reaching that stage, experts from much wider fields also had input. The inputs from those experts helped to define the application. In this regard, I note that issues of relevance to the Aboriginal community have been discussed in detail, leading to the inclusion within the application of a proposal for an Aboriginal keeping place, while a detailed geomorphological investigation of Mullet Creek (carried out after the commencement of the s34 process) informed the consideration of the flooding and storm water issues discussed by Mr Bewsher and Mr Carden. Geotechnical advice was also provided to the parties on matters related to the civil engineering works, including during the course of hearing; the geotechnical experts were, however, not required to give evidence.

68. The authors of the joint reports in two areas – visual impact and planning – were also not required to give evidence.

69. Mr Pollard and Ms Lee in the first visual impact joint report (Exhibit 5) agreed that, in terms of visual impact, the critical part of the proposal were the works proposed for the northern part of the site, and also that, in order to make an assessment, additional photomontages were required as well as further details of the earthworks.

70. In this second report (Exhibit 6), after considering the additional information provided, the experts were in agreement that the visual impacts were acceptable. This agreement was not unconditional, it was based on what was, at the time they produce the report, proposed, but if discussion between the engineering experts resulted in more than minor changes to the earthworks, that conclusion might be altered. However, neither party raised any questions of new referral to the visual impact experts following the hearing of the concurrent evidence of the engineers.

71. The planning experts prepared two joint expert reports (Exhibits 3 and 4). These canvas a number of topics about which the experts did not agree. However, substantive matters of disagreement relating in particular to provision of services, off-site impacts (particularly those of an ecological nature), and the earthworks were discussed in more detail in the other expert reports and in submissions.

72. The experts in what might broadly be referred to as engineering, encompassing the earthworks, provision of services and works on Mullet Creek, were sworn in as a group – Mr Williamson and Mr Bewsher for the Applicant and Mr Heaven and Mr Carden for the Respondent. It was agreed that in view of the changes that had occurred during the course of proceedings that the joint reports relevant to the engineers were Exhibits X (supplementary joint report of Mr Carden and Mr Bewsher), Y (supplementary joint report of all four experts) and Z (amended joint report of Mr Heaven and Mr Williamson). It is convenient to first discuss the flooding and storm water issues associated with Mullet Creek which were covered by Mr Carden and Mr Bewsher.

Flooding and Stormwater

73. Although Mr Bewsher was also involved in the discussions over drainage associated with the earthworks, he had a history of work on Mullet Creek in association with the Council and had been engaged by the Applicant as a result of criticism by the Respondent of earlier studies by the Applicant on the flooding issues.

74. Drainage and flooding issues are matters for consideration in the assessment of many development applications, but assume particular importance for development within the City of Wollongong, given the influence of the Escarpment in generating high-intensity rainfall events with consequent high run-off.

75. Clause 7.3 of the WLEP sets particular objectives for management of flooding and sets a condition precedent (cl 7.3(3)) requiring a consent authority to have satisfaction on all of the matters (cl 7.3(3)(a)-(g)) before consent can be granted for a development to which the clause applies

7.3 Flood planning

(1) The objectives of this clause are as follows:

(a) to maintain the existing flood regime and flow conveyance capacity,

(b) to enable evacuation from land to which this clause applies,

(c) to avoid significant adverse impacts on flood behaviour,

(d) to avoid significant effects on the environment that would cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses,

(e) to limit uses to those compatible with flow conveyance function and flood hazard.

(2) This clause applies to:

(a) land identified as “Flood planning area” on the Flood Planning Map, and

(b) other land at or below the flood planning level.

(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied in relation to all the following matters:

(a) all habitable floor levels of the development will be above the flood planning level,

(b) the development will not adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties,

(c) the development will not significantly alter flow distributions and velocities to the detriment of other properties or the environment of the floodplain,

(d) the development will not affect evacuation from the land,

(e) the development will not significantly detrimentally affect the floodplain environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses,

(f) the development will not result in unsustainable social and economic costs to the community as a consequence of flooding,

(g) if located in a floodway area—the development will not be incompatible with the flow conveyance function of, or increase a flood hazard in, the floodway area.

76. Mullet Creek runs diagonally across the southern part of the site, and areas on both sides of the creek are below the flood planning level and therefore fall within the ambit of cl 7.3.

77. The Applicant had carried out extensive studies on Mullet Creek and its surroundings in order to demonstrate satisfaction of cl 7.3(3).

78. The numerical modelling of flood conditions in Mullet Creek had been carried out for the Applicant by Water Technology. The applicability of the model was debated between Mr Carden and Mr Bewsher at considerable length. Central to Mr Carden's concerns were the appropriate Manning’s roughness values to be included in both pre- and post-development models. The roughness values (also referred to in the literature as Manning’s n or Manning’s coefficient) are empirically derived values used in Manning's formula to calculate average velocity of flow in channels. The Manning’s values will depend inter alia on the nature of the vegetation cover. Mr Carden emphasised that the channel and its surrounds were complex with different vegetation in different geomorphological components of the landscape. Flood characteristics would also be affected by depth and sinuosity of the channel.

79. Mr Carden and Mr Bewsher remained adamantly apart in their views. However, Mr Robertson, in order to make progress, agreed to seek his client's approval for the commissioning of further modelling using a range of Manning's values agreed between Mr Carden and Mr Bewsher, and incorporating sensitivity tests on the consequences of variation in the Manning’s values of ± 20% on flood impact.

80. The modelling results predicted flood storage (detention), maximum water levels in peak velocity under five year ARI and 100 year ARI events as well as the Probable Maximum Flood (PMF) event and changes to these parameters with variation in the roughness coefficients.

81. Results were provided to the parties in a memorandum from Water Technology dated 10 December 2018 (Exhibit MM). The results were considered by Mr Bewsher and Mr Carden, and an email chain of correspondence between them was tendered as Exhibit NN.

82. Mr Carden agreed that the additional modelling satisfied the concerns in Contention 6 (The flood impact assessment does not reflect development condition flood storage and flood impacts). In relation to Contention 7 (The flood impact assessment predicts increases in flood velocities on adjoining land as a result of the development), the modelling results show an increase in flood velocities on site and outside the site. Mr Carden agreed with the information in the emails that there was no risk of erosion occurring in grassed areas east of Cleveland Road, and the impacts within the site and in Lot 18 DP 3083 would be adequately mitigated by the proposed bank stabilisation works.

83. Mr Carden proposed a condition which, in essence, required appropriate design for the stream works to be reflected on the Construction Certificate plans prior to release of the Construction Certificate.

84. If that were done, Mr Carden considered that Contention 7 was resolved.

85. Achievement of the outcomes predicted by the model will be dependent on the achievement of the vegetation cover proposed in the Vegetation Management Plan, and ongoing maintenance of the vegetation – matters appropriately dealt with by conditions.

86. In view of the agreement between Mr Bewsher and Mr Carden, and from my reading of the reports, I am comfortably satisfied in relation to the matters in cl 7(3) of the WLEP.

Civil Engineering

87. The proposal involves a number of earthworks, but those which are the subject of contention relate to the site development works for the northern part of the development. This is the steepest part of the site, and the works will be required to make landforms suitable for the building of roads and to create blocks for constructing the residences. In addition, this part of the development also includes a recreation area refer to as the Escarpment Park.

88. The principal issues raised by the experts relate to batters and retaining walls, where concerns related to stability of the landforms, and to drainage, with the need to avoid local pondage. Part of the exchanges involved the clarification and interpretation of the drawings (reading the plans was, in the form presented, sometimes difficult).

89. Mr Williamson indicated that “The design will change between DA and CC as a matter of design development” (Tcpt, 22 November 2018, p 85(46 – 47)) and that:

“The position with design is always that we present for the DA what can be achieved, not how it’s going to be achieved. We've – I believe that we've demonstrated – that this development can be achieved and in CC will demonstrate how.” (Tcpt, 22 November 2018, p 85(1-4))

In the discussions, a number of particular lots were identified where adjustments could occur and in some cases would be necessary.

90. Mr Heaven, for the Respondent, agreed that as result of ongoing investigations there would be further changes to the details:

“There could be some changes to the batters. There might be some localised changes to the extent of the earth works. The question about how far that extent would be, it may be minimal and in some blocks it may extend many metres into other lots. Is that a big problem? On face value I don't think it's a huge issue for this particular contention…” (Tcpt, 22 November 2018, p 87(34-38)).

91. He continued:

“I think the key here is – my biggest concern has been – my experience with concept plans is the ability of the certifier to dig into particular issues so the idea of getting this concept plan is to get a gauge on the extent of the potential works but also to provide some targeted conditions to deal with these particular issues”. (Tcpt, 22 November 2018, p 87(43-47))

92. The Escarpment Park plan had been prepared by the Applicant's landscape consultant. There was agreement among civil engineers that this plan required redrawing to adjust levels to be compatible with the road levels.

93. Mr Williamson and Mr Heaven gave evidence on Day 4 in which they addressed specifically matters where the planners, in their joint report (Exhibit 3), were in disagreement. The extracts from the transcript quoted below demonstrate the range of issues addressed by the civil engineers and the extent of agreement between the experts. The first topics relate to the lot layout and road design (the two being related because of the necessity of providing road access to the lots) and landform. Landform and road design also interact in relation to surface drainage.

“ROBERTSON: I propose to ask the engineers some questions about matters that the planners raised or a planner has raised. The joint planning report is exhibit 3. Do the witnesses have that report? Thank you. Can you just go to 5.3 on page 8? This is an issue that you dealt with together in your report. It's not at page 8, where there was agreement that a satisfactory response had been provided to 5.3. However, I've been informed by my friend your Honour that this is contentions not being resolved and that it proposes to put the matters in the - said by his planner in response to 5.3. Can I ask you, Mr Williamson, does the design of the proposed subdivision in regard to lot layout and road design, take into account the topography and natural land form of the site?

WITNESS WILLIAMSON: Yes.

ROBERTSON: Could you explain to the Court how it does that?

WITNESS WILLIAMSON: I can explain perhaps better by exception. If the site was strictly in compliance with council's DCP, the lot gradients would be a minimum of 15% and there would be retaining walls all the way up the slope, taking into account approximately 20 metres of elevation loss. We wouldn't be cutting and filling more across the site to comply with the DCP to try and get - and I'm being diagrammatic, I apologise, but to try and get lots to grade towards the road. I'm trying to create that environment on a hillside that slopes like that, wouldn't be respecting the land form. What we have instead is an environment that works with the land form where the housing steps up the hill, if you will, more in line with areas such as Kiama on the south coast areas of Wollongong, where there are steel land form. If you look at Palm Beach, Northern Sydney, if you look at Cape Town, as an international city, that's the kind of environment that we're looking for, working with the land form, working up the land form, rather than fighting it.

ROBERTSON: Right. One of the criticisms made by the planner is that there are significant level differences. Is that something which is a product of the land form or is it a product of your design?

WITNESS WILLIAMSON: It's a reasonable compromise in trying to achieve a subdivision on the slope that we're working with. In terms of our joint report, we generally concluded that it is a reasonable compromise.

ROBERTSON: All right. Do you agree with that, Mr Heaven?

WITNESS HEAVEN: I do.

ROBERTSON: The 5.4, if you just turn to page 10 of the joint planning report, it's a good location to look at it, it says:

"The proposed roads for the proposal, notably the access roads located within stage 1 north have not been designed to respond to the existing land form associated with significant cutting or fill, causing the road significantly higher above than the proposed residential lots, up to approximately 8 metres in some instances".

I'm just wondering whether that was correctly transcribed, because it doesn't make much sense.

WRIGHT: I think there's a few typos in there

ROBERTSON: But as I understand it, the criticism is that there's cut and fill and that you have residential lots that are much lower than the roads and up to 8 metres in some instances. I don't think the 8 metres is correct, frankly, but you can--

WITNESS WILLIAMSON: Well, whether it is or isn't, it is a fact that there are lots that are below the road and there are lots that above - that are above the road and that's a feature of building a road on a land form. In this environment, we have a maximum limit on our road of 20%, whereas in some cases, the land form runs to 30%. You've got to take that difference up somewhere and that occurs in the lots.

ROBERTSON: Mr Heaven, do you agree with that?

WITNESS HEAVEN: I do.

ROBERTSON: Yes. There is an illustration in the planning report which I think is taken from one of the joint reports, maybe yours. Perhaps the hydrologist did this. There's AA - yes, it's from the hydrologist report, the stormwater report. There's a section AA on page 11 and on page 12, that section is shown as a cross-section. I think there's some exaggeration because of the difference between the X and Y arms of the graph. So it's not the reality, as it were, but it shows us, if I can just read this off, that at - this is the road supported across the slope where the natural level is say 72.5 and then the road sits at almost 77. I think that's what it's said to illustrate.

WITNESS HEAVEN: Broadly.

ROBERTSON: And then it falls to about 75, when it again meets the natural slope of the land. Of course one would need to elongate the horizontal to get a realistic portrayal of that. But this is said by the - the planner says:

"The cross-section depicts the approximate difference between existing and proposed levels. Figure 2 below is" - I'm just reading from page 10, "Figure 2 below is an example of cross-section AA taken across proposed lot 359 and 361. While it's noted that the proposed lot boundaries and road are not marked on this cross-section, it can be reasonably assumed that the road is the extent of the horizontal red dotted line. The blue solid line shows the existing levels and the red dotted line the proposed levels. From this cross-section you can infer that the road is approximately 4 metres higher than the lowest point in the proposed lot and the extent of fill to create the road. The batters from the road to the proposed lots are identified. The two other cross-sections", and then it goes on.

Is that the most extreme point of height differences?

WITNESS WILLIAMSON: No.

ROBERTSON: Right, but it's one such point. Why is the road designed like that?

WITNESS WILLIAMSON: If you take any points in isolation, you can poke holes in a design. This is a design that takes into account a range of factors that are at times competing with each other. Taking this particular example, the area - using that same figure, the - between lot 361 and 362, which is at the top of that figure, that is a stub road. It's a matter of a separate contention that's been resolved, but that stub road needs to tie into existing ground level. The road between lot 360 and 359 needs to--

ROBERTSON: Sorry, why does the stub road have to meet existing ground?

WITNESS WILLIAMSON: That is good engineering design practice at the termination of the development.

ROBERTSON: Do you agree with that, Mr Heaven?

WITNESS HEAVEN: Yes.

WRIGHT: I'm sorry, Mr Williamson, I just didn't quite catch the whole of that sentence?

WITNESS WILLIAMSON: Good engineering practice at what I call termination of the development. So at a boundary position.

WRIGHT: It was the termination bit I missed and that's why I wanted to make sure I was clear. If I could just - you agree with that, Mr Heaven? Essentially what that means is it's where it ties into the land at the north?

WITNESS WILLIAMSON: That's correct.

WRIGHT: And it's land form, right?

WITNESS HEAVEN: No, I do agree with that, because, you know - particularly with separate ownership, it doesn't pose undue restrictions on the adjoining property owners, particularly when you don't need to--

WRIGHT: What you're really trying to say is, as I understand it, in terms that I can understand it as a layman, is that you're not creating a possible adverse consequence for the adjoining land or its future development potential, is that what you mean?

WITNESS HEAVEN: From my view, yes, that's one of the benefits of it.

WRIGHT: All right.

WITNESS WILLIAMSON: I agree. So continuing, the road between lot 360 and 359, which is north road 4, that road is currently grading at 20%, which is the maximum allowable, because it needs to grade up from north road 2 to north road 3. North road 3 leads into a potential future stage, that needs to tie into natural level at or near the end of the work.

ROBERTSON: North road 3 being the road--

WITNESS WILLIAMSON: The road, the road that continues to the west of lot 362 to 359.

ROBERTSON: Yes, thank you.

WITNESS WILLIAMSON: So generally, what we have is an environment where we've three or four points where we need to tie into an existing ground level and the result of maximum allowable grades that are shallower than the existing natural land form means that at some point we have to take up a level difference. That's unavoidable.

ROBERTSON: That's the example that the planner gives, I won't take you to--

WITNESS WILLIAMSON: I wouldn't mind adding that that issue was actually the result of the - I think it was exhibit ZZ, it was the additional plan that was tabled by us yesterday.

ROBERTSON: Let me find that plan. BB, exhibit BB.

WITNESS WILLIAMSON: And that area was resolved, the common--

ROBERTSON: Can you just wait until we find BB? Does everyone have BB, Commissioner?

COMMISSIONER: Yes.

ROBERTSON: Okay, sorry, you go on.

WITNESS WILLIAMSON: That are was generally resolved in discussion, particularly lot 347 where we agreed that additional design towards CC would normally resolve some of the issues that were identified by council in that area.

ROBERTSON: Those were drainage issues, I think?

WITNESS WILLIAMSON: They, they were, yes.

ROBERTSON: All right, thank you.

COMMISSIONER: Just before we leave the section, just from my understanding, where the actual road is, is that the cambered section and the bits that go down to it are the verges or--

WITNESS WILLIAMSON: If you're referring to section AA?

COMMISSIONER: Section AA, yes.

WITNESS WILLIAMSON: Correct. The road is the centre section. If you look at the X axis it's roughly between 30 and 45.

COMMISSIONER: Yes. And you would have very sharp edges to the top of the batters?

WITNESS WILLIAMSON: The batters in this case are exaggerated. The X scale is exaggerated, it wouldn't - it will look flatter if you drew that at a natural scale. So they do appear steeper, but they are quite steep on their own.

COMMISSIONER: Yes, thank you. And the drainage from the road, there would be some sort of drain along the edge of that verge, would there?

WITNESS WILLIAMSON: That is correct. On - if you have the engineering drawings, which were attached to the DA submission.

ROBERTSON: Yes, let's just pull them up. Exhibit A-F, tab F.

WITNESS WILLIAMSON: You would be looking for plan C005.

COMMISSIONER: Yes.

WITNESS WILLIAMSON: And with the detail in the top left of that plan entitled "Road type 1 stage 1 north 10 km/h shared zone".

ROBERTSON: Right.

WITNESS WILLIAMSON: That gives you a profile of what you'd expect to see as the road.

COMMISSIONER: With dish drains either side?

WITNESS WILLIAMSON: That's correct.

COMMISSIONER: And they flow eventually--

WITNESS WILLIAMSON: Pits, pits and pipes.

COMMISSIONER: Pits and pipes.

ROBERTSON: And there's some stormwater retention at some stage, is there?

WITNESS WILLIAMSON: The stormwater retention for this area is provided at the bottom of the hill, if you will. There are two basins. Those can see on C002.

ROBERTSON: And we've integrated those with the golf course, so they're hazards.

WITNESS WILLIAMSON: When I play, probably yes.

ROBERTSON: Yes, so if we look at 02, it's the basin shown between 15 and 16 on that side?

WITNESS WILLIAMSON: There is one between 15 and 16. There is also one towards the northeast of the development.

ROBERTSON: Yes, that’s right at the top on the right-hand side?

COMMISSIONER: Yes, a larger one.

WRIGHT: I thought there were four in total.

ROBERTSON: Yes, there’s a couple of on the other side.

WITNESS: Correct, there are four in total.”

(Tcpt, 23 November 2018, pp 6(31-50), 7-11, 12(1-4))

94. The roadside dish drains and associated constructed landform interact with the proposed lots, and the Council’s planner (Exhibit 3) expressed concern about the consequential constraints that might be imposed on the development of the lots.

“ROBERTSON: Can I ask you to turn to 5.5 in the plaintiff’s report? Page 12. 5.5 is:

“To facilitate the design and height of the access road, a continuous batter is required, extending into the residential lots. The batters appear to be one and two, extend to 6 metres from the frontage, this results in a number of lots, appear to have a significant slope up to 50% in some instances.”

I assume that’s a reference to the slope of the batter.

WITNESS WILLIAMSON: That’s. I, I believe the 50% is a typographic error. Perhaps I could refer you to drawing C029?

ROBERTSON: Yes, thank you.

WITNESS WILLIAMSON: C029 is a colour-coded plan indicating the gradient of the lot within what we call a - well, what I call the, the development area. So, if you’ve got a batter on the front of the lot or the up or down side of the road, that’s not included in this assessment. It’s where you would build a house, this colour-coded plan refers to the gradient of that area.

WRIGHT: Can you just excuse me for a moment? I want just want to make sure Mr Robertson understands something.

ROBERTSON: Thank you. We’ve got C029 and the slope--

WITNESS WILLIAMSON: Yep.

ROBERTSON: --colours. Just start again.

WITNESS WILLIAMSON: Okay. So, the, the slope colours, there’s a legend up in the top-right of that plan which indicates which colour responds to which gradient. The gradient refers to the area of the lot which you would build a house.

ROBERTSON: Right, so it’s not the whole lot?

WITNESS WILLIAMSON: It’s not the whole lot, no.

COMMISSIONER: Is there anywhere on the map which has an indicative building line that shows where the houses would be?

WITNESS WILLIAMSON: That is--

ROBERTSON: It’s in the subdivision plan, I think, is it?

WITNESS WILLIAMSON: There’s - actually, the best place to find that is the APZ plan, I believe.

ROBERTSON: I’m sorry, Mr Williamson, you’re saying that this place is where?

WITNESS WILLIAMSON: It’s on a figure which is the APZ.

WRIGHT: It’s a fire.

WITNESS WILLIAMSON: I don’t think that’s my plan. I think that’s actually in the bushfire report.

WRIGHT: Where’s the bushfire report?

WITNESS WILLIAMSON: It’s actually - it’s referenced under 5.11 as one of the planners contentions. There’s a--

ROBERTSON: Bushfire assessment is at 2L, which will be exhibit B. I’m told it might be in the architecturals. It’s in the architectural plans 002, tab 2C of exhibit A.

COMMISSIONER: Yes.

ROBERTSON: If we’ve got a copy, we might just show the witnesses if they don’t so they can - now, the building envelope, if you look at the legend on the left-hand side of 02, you’ll see that there are various asset detection zones, and then, there’s a building envelope, minimum dimensions, indicative positioning. And this seems to incorporate a large amount of information from different experts, but you’ll see that indicative building envelope shown, Commissioner, in - if we look at “Stage 1 east”, for example, there in the centre of those lots, “Stage 1 east” isn’t constrained significantly.

And if we look at “Stage 1 north”, the building envelopes are in different positions on the lots, but largely in the centre, but some are further away from the golf course. I think the zoning line was shown there in orange. Commissioner, you’ll recall that there’s an issue raised about the lots being in two zones, split zone lots. You can see easily from this plan “Stage 1 east”, where the split zones are, we’ve shown you that in a different plan, but this is a good plan to use, and there are some split zones from lot 314through to 318, possibly 319 at its corner. And you can also see the stormwater basins. It’s actually - this seems to be a good, integrated plan. Mr Williamson, did you want to use this plan?

WITNESS WILLIAMSON: I’m happy to use it. Is there anything to which you’d like me to respond?

ROBERTSON: It’s just the questioning concerning the location of the building areas.

WITNESS WILLIAMSON: They generally show what I was speaking to before, which is that the location of the dwellings is located broadly outside the batters that support the roads and that they are on an area of - we have tried to site them on areas of existing natural gradient. Those natural gradients respond to the land form, and they are, in some cases, up to 35%. The majority of them are significantly less than that.

COMMISSIONER: Would these - are building envelopes at this stage indicative or would they be conditioned to conform to this plan?

ROBERTSON: Normally, Commissioner, we would expect a condition that, for example, prevented building, say, 10 metres from the frontage of 20 metres from the rear. I’m just using those figures indicatively, but for particular lots where they intersected with the RE2 land, we’d expect a condition limiting building to the residential zone part of the lot. And there would also be a condition relating to fire, ensuring that the building was outside the APZ. So, the combination of those conditions for the constrained lots would effectively produce a building envelope. But if the lots are unconstrained, I’m not sure that it would be necessary in those instances.

I have seen develop consents for subdivision, where indicative building platforms are inscribed on them and a condition of consent picks it up. But the problem with that is that when you actually get to do the earthworks and the subdivision works, you find that conditions on the ground are such that prescribing a particular area can be more of a problem and there are often better solutions, depending on the design that you propose for the location.

COMMISSIONER: But in a general sense, you would be picking up on the planning principles and power of Kiama where it was appropriate?

ROBERTSON: Yes. I can’t immediately point to a condition in the conditions, but perhaps someone might tell me if there is one.

WRIGHT: Mr Heaven has asked for permission to speak.

WITNESS HEAVEN: I might add something to that. I generally agree in terms of you would only limit building envelopes where there are real constraints. There are flow-on effects if you have unnecessary building restrictions. There is a draft condition in the consent. I think - I haven’t seen the latest consent, but it was 135. So, in terms of engineering--

ROBERTSON: Just let us find that.

WITNESS HEAVEN: It’s now - sorry, yeah, the old ones. It was the old 135 restriction to road batter.

ROBERTSON: So, if you turn to exhibit 13, Commissioner, it’s a condition we would accept, of course, Commissioner. It’s consistent with our own advice experts.

WRIGHT: But in the version I’m looking at, which is the version so far tendered, Mr Heaven, condition 135 is a restriction relating to road batter.

WITNESS HEAVEN: That’s right. So, what the expectation is is that there will be some slight changes to the extents of the road batters once the detail design work’s underway. But I don’t myself agree that, you know, particularly once the geotechs did their investigation and there’s much more detailed survey, there might be some slight changes in levels. There might be certain outcomes that the geotechs recommend, and combine that with some of the drainage conditions, there might be some changes to the road batter. So, there is an expectation that once those future house designs have been developed, some of those may encroach into those batters. And so, rather than necessarily restricting a 10 by 15 building envelope, what’s really important is making sure that there is - you, you alert the owners to various constraints, whether it’s, you know, other constraints in the site, but in issues we’ve looked at, particularly making sure that when mum and dad puts their DA in for a house, that they’re very aware of some of those restrictions and the rights to GHD construction and things like that.

ROBERTSON: So, if I understand you correctly, you would, by parity of reasoning, want to see conditions that addressed constrained sites, all the constraints including the ABZ slope, it’s batter here we’re talking about--

WITNESS HEAVEN: Yeah, in, in---

ROBERTSON: --what happened yesterday in relation to the roads themselves, all restrictions, and some of them now apparently are also going to have pipes and drill up and drainage.

WITNESS HEAVEN: In, in my experience, the necessary restrictions are required. The unnecessary ones basically are just additional paperwork, because then landowners may need to cut through the council to see variations to restrictions of title. You’ve then got to go through the history of the subdivision to try to determine what were those restrictions, why did they come about, so there might be some that are environmental, there might be tree protection, there might be, you know, other geotech or ecological constraints that need to be factored in. In the issues that I’ve looked at, the main issue that I’ve been involved in relates to the support of the road.

ROBERTSON: Can I just draw your attention to condition 14? That’s a general 88B instrument that’s to be registered and you’ll see that subpara (g) requires the 88B instrument over those indicated lots for the maintenance of an inner protection area.

WITNESS HEAVEN: That’s an APZ.

ROBERTSON: And then, there’s a restriction on the type of building in those lots in (h). That condition seems to pick up other restrictions that are picked up elsewhere in the consent. And we can't register the subdivision - or sorry we can't get the subdivision certificate issued under 259(e) unless we provide the 88B instrument?

WITNESS WILLIAMSON: That's correct.

…

WITNESS HEAVEN: Look the sites are challenging for any designer. But in terms of the issues listed, you know, I can't really comment on amenity or solar access, but certainly the retaining walls and the draining has been resolved.

…

WITNESS WILLIAMSON: This site has been a very difficult site to design. It has been a challenging site. We have done everything we can to work with the landform.

ROBERTSON: You could’ve shaped the lots in a different way, I suppose, and made them larger or turned them around perpendicular, there could’ve been a number of changes. Why did you adopt that particular lot orientation?

WITNESS WILLIAMSON: The lot orientation was undertaken by the architect. The - that said, there were a range of options that were explored through the early stages of this project. If I recall correctly, in approximately 2016, it would be mid to early 2016, we explored an opportunity to make all the lots within the development 15% gradient which would’ve involved a massive amount of earthworks and substantial retaining walls across the site, which I don’t believe would’ve respected the landform at all.

We looked at orienting the roads, north south, as opposed to generally east west. That would’ve helped, it would’ve looked a bit more like San Francisco with the lots running up the hill. The problem with that was that from a distance what you would see is a couple of parallel scars running up the hill. And from a development perspective, the client decided that wasn’t the look they were trying to achieve.

ROBERTSON: In other words, from a visual perspective--

WITNESS WILLIAMSON: From a - yeah--

ROBERTSON: --from a distance you would see, as it were, a kind of scar on the hill?

WITNESS WILLIAMSON: A couple of scars, that's correct. Now, I'm not speaking to the visual impact. I'm saying that was a decision that was made by the client. With what we have, and I think Andrew and I have agreed, it is a reasonable compromise in the development constraints, the provision of the development, and working with and around the landform.

ROBERTSON: Do you have anything to add to that Mr Heaven?

WITNESS HEAVEN: Yeah, I - look I agree. One of the challenges for GHD as a designer is they get a project brief with a certain yield and a certain outcome that their client requires. You know, if the client wanted ten lots on the side of that hill, then it would’ve been a much different - much different design. But there's a certain balancing act between, you know, the feasibility of the project and, and those outcomes.

So for this number of lots, and, and, you know, getting a better understanding of the different iterations of the design, yeah, there's - I don’t see much else that can be done, you know. As David and I have spoken about, you know, minor opportunities where there might be scope to lower some of those grades, I mean the grades for the roads. And we've got a condition that talks to having a traffic engineer look at certain safety aspects of the road grades, you know, so ideally you would be looking at minimizing those impacts as best as possible. But for what we have in front of us and for this particular yield, I think it's a reasonable outcome.

…

WITNESS WILLIAMSON: In order to subdivide this land and create residential dwellings, there is a need to undertake earthworks and construct roads. The design that has been produced responds to the land form within the constraints posed by the land form.

ROBERTSON: Now relating the drainage impacts specifically which is what this is and geotechnical constraints, just dealing with drainage. We've seen how the various inter allotment drainage works, the roads have culverts and they lead to a settling, a detention basin. As I understand the proposal is to use WSUD techniques is it?

WITNESS WILLIAMSON: That's correct, so a combination of water quality and water quantity management at discharge from the subdivided areas.

ROBERTSON: All right, I don't think that's been the subject of criticism has it Mr Heaven? Not at the moment, I mean it might've been discussed some years ago?

WITNESS HEAVEN: Not that I'm aware of but I, I think, you know, I'm looking at the date of these contentions, particularly the reference to drainage and geotech. If it's drainage in terms of the inter allotment drainage, the, the, the pit and pipe network, then I believe that's been resolved as well as the geotech concerns, I think.

ROBERTSON: Yes, thank you. I don't think there was anything else in the planner's report that dealt specifically with engineering issues. I do want to ask you about the arrangements for water lead in infrastructure, but my friend wants to ask some questions about those matters.”

(Tcpt, 23 November 2018, pp 12(6-50), 13-15, 16(1-4), 18(12-14), 19(26-49), 20(1-29), 21(40-49), 22(1-17))

95. It was clarified in the exchanges below that some of the proposed dish drains beside the roads would not be within lots, and so would not constrain development within lots.

“WRIGHT: With hindsight, with how we far we've moved. Normally we do this topic by topic. I didn't want to interrupt Mr Robertson's flow. I should have, so I'm going to have to back track a little bit, but my questions are narrow. And you've both been careful, particularly Mr Williamson, to ensure that you tell us and the Commissioner that you are only speaking from your, strictly from your expertise, so thank you for that and my questions aren't asking you to venture beyond it.

In answer to a question from Mr Robertson in relation to lots 361 to 362 on my note, he asked "If they were the most extreme high point?" You said, "No", I thought Mr Williamson, didn't you?

WITNESS WILLIAMSON: I didn't say, "The most extreme high point". Sorry, no the question was in relation to gradient

WRIGHT: Yes.

WITNESS WILLIAMS: or whether or not the difference

WRIGHT: Point of difference.

WITNESS WILLIAMSON: of height from the road to the lot was the most extreme.

WRIGHT: Which is the most extreme?

WITNESS WILLIAMSON: It is adjacent to the escarpment park, and those are 339 and 340. You'll find that on drawing C11.

WRIGHT: Now if you all, sorry all, if you keep BV open for the moment and you referred the commissioner to plan C029 to demonstrate what you said was the most likely indication of the batter and camber profile of the road, wasn't it?

WITNESS WILLIAMSON: Sorry?

WRIGHT: There's some rustling, so it's hard to hear, I'll just wait. You referred the commissioner to her plan C029 from the engineering drawings to demonstrate what you said was a clear indication of the actual profile of the road, including the batters, is that right?

WITNESS WILLIAMSON: No, C029 is the gradient of the most likely location for a dwelling site.

WRIGHT: Let me just find the plan then, I probably made the wrong note. Or you can tell me which plan you had to, which is thought was a section showing the batter profile in the road profile. No, I'm sorry, I am in the wrong plan. Can you recall which plan that was Mr Williamson, showing the road?

WITNESS WILLIAMSON: Was it the figure in the planning report that your referring to?

WRIGHT: No, you looked at the fitment and planning report, then took the Commissioner to a plan to show the

WITNESS WILLIAMSON: Sorry, it's the engineering section of C05 which is the typical, typical section for road type 1.

WRIGHT: Just give me a moment, I've got so many tabs on this now, almost intermingling. Yes, thank you. Just clarifying. As a consequence of the further discussions between the geotechnical engineers as to what will be required by way of batter design can show that they are stable long term, this profile won't necessarily link up with the..(not transcribable)..like after that design has been done, will it? We don't know what the road, the batter profile is going to be until we see the design produced to ensure that they're not as identified as temporary batters were they?

WITNESS WILLIAMSON: The discussion with the geotechnical engineers confirmed that the batters shown on the plans, if further geotechnical investigation was undertaken and appropriate geotechnical design was undertaken and then built in an appropriate way, the batters as shown, are appropriate.

WRIGHT: All right, but we don't know until that investigation design is done that they will be able to remain this way, do we?

WITNESS WILLIAMSON: Your position, or your, your statement is correct, but at the same time the geotechnical engineers didn't raise that as an issue.

WRIGHT: It's clear enough though from the contribution they made to you in the suggested form condition that it is all subject to further design?

WITNESS WILLIAMSON: Absolutely, and we've agreed generally the terms of that condition.

WRIGHT: The dish drains that the Commissioner drew your attention to will all have to be present won't they, on residential lots?

WITNESS WILLIAMSON: No, the dish drains are within

WRIGHT: All of them?

WITNESS WILLIAMSON: the lot, within the roads. So if the section that you're referring to is road type 1, then on the left and the right of that section, there is a notation saying, "Property boundary".

WRIGHT: So you're saying that even with this further geotechnical design, with the batters extending into the residential lots, that you'll still be able to ensure that dish drains, the road, are outside residential property boundaries?

WITNESS WILLIAMSON: What's shown on our plans is that the batters take the road down to the residential lot, but that the dish drains shown on the section are within the road boundary.

210. Biscoe J relied on Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services Ltd (1997) 95 LGERA 86 and the Nathan Dam case as authorities for requiring that the bridge be assessed as part of the school proposal and concluded (at [25])

“In my opinion, it would be artificial and inconsistent with the objects of the EPA Act to make a decision under Part 4 which locked in bridge works on adjacent council owned land and in part of the land to be dedicated to the Council, yet to defer solely for consideration the likely and inextricably linked impacts of the bridgework to be assessed under Part 5.”

217. It is worth noting one of the matters for which consideration would be required in the assessment of the bridge would have been impacts on an Endangered Ecological Community.

218. The Court of Appeal in Hoxton Park Resident Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 upheld Biscoe J’s decision in relation to the bridge issue.

Water and wastewater services

219. A major difference between the parties related to the provisions of water and wastewater services both within the site and offsite.

220. The assessment for the supply of services to the site falls into two parts – that assessed under Part 4 of the EP&A Act for services within the boundaries of the site, and that assessed under Part 5 from the boundary of the site to the existing services some 5 km away.

221. The Respondent argues (submissions paragraph 60) that it is clear that adequate arrangements have not been made in relation to water and wastewater.

222. The Applicant rejects criticism of the lack of information by reference to cl 54(4) of the EPA Reg:

(4)  However, the information that a consent authority may request does not include, in relation to building or subdivision work, the information that is required to be attached to an application for a construction certificate.

Note. The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted.

223. Mr Wright argues (Respondent's submissions at paragraph 90) that recourse to cl 54(4) does not mean that the Applicant is ‘thereby relieved of the obligation to ensure that infrastructure which is essential to a subdivision avoids scrutiny or assessment under s 4.15 EPA Act’ and (submissions paragraph 91) ‘If that were the case, an applicant would avoid including any information in a development application for subdivision that would enable a consent authority to evaluate the application.’

224. The question of how much information is required is a matter of degree – information required will vary depending on the circumstances of the case, and if insufficient information is provided in an application such that the consent authority is not satisfied that they have sufficient information for assessment then the application will fail.

225. Clause 7.1(2) of the WLEP provides that:

(2) Development consent must not be granted for development on land unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

226. Public utility infrastructure is defined as any of the supply of water, supply of electricity and the disposal and management of sewage (WLEP cl 7.1(4)).

227. The objective of cl 7.1 is to ensure that sufficient infrastructure is available to service the development.

228. Infrastructure for water and sewerage is not currently available, the provision of such infrastructure is obviously essential for the subdivision to be developed.

229. Clause 7.1(2) establishes a condition precedent, the consent authority must be satisfied that adequate arrangements have been made – absent adequate arrangements the process stops. However, do those adequate arrangements have to define every detail of the proposed water and waste water supply, or would an arrangement which provides a concept and a process to develop the concept into the necessary plans to permit the infrastructure to be built be adequate?

230. ‘Arrangements’ indicates something less than a formal contract or some other signed and sealed document, but it does imply that they have been discussions between the relevant parties resulting in a consensual decision (Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399 (Codlea)). Adequate is not defined in the LEP and so takes its everyday meaning, which means that minds might differ as to whether the arrangements, if expressed in broad terms rather than in every detail, are adequate.

231. The issue of provision of services in Codlea was in the context of a local environmental plan in which the relevant clause referred to ‘prior acceptable agreements’ (Byron Shire Local Environmental Plan 1988, cl 45) whereas cl 7.1(2) WLEP talks about ‘acceptable agreements have been made to make that infrastructure available when required’. Does the change of wording have any consequences? Both forms of wording require that agreement has already happened.

232. The question arose in Eastbrook Pastoral Pty Ltd v Muswellbrook Shire Council [2014] NSWLEC 1144 where the relevant clause in the local environmental plan had similar wording to that in WLEP (Muswellbrook Shire Local Environmental Plan 2009, cl 7.4(2)):

(2)  Development consent must not be granted for subdivision development on the land to which this clause applies until the land is adequately serviced with water and sewerage, or arrangements satisfactory to the consent authority have been made to service it.

233. Commissioner Morris noted at [63] that: “The word prior was not included in the LEP clause” and “For these reasons and having regard to the evidence, I am satisfied that the necessary water and sewerage services are available to the site” (at [64]).The water and sewerage authority was, in that case, the Council.

234. The Applicant's water and wastewater planning options study is Exhibit J. Exhibit R is the cover page of the document with the signatures of the authors from GHD, and Mr Serra from VIG. It is also endorsed by a number of officers of Sydney Water. Their endorsement states that:

“I confirm that impacted parties within my business have been consulted, their inputs have been considered and the decisions have been communicated to relevant parties”.

235. Sydney Water's position is made clear in the letter from Mr Ortega of Sydney Water to Wollongong City Council of 30 October 2018 (Attachment D to Exhibit 3, reproduced below:

236. The statement ‘we have reviewed and accepted the report on the conditions that the proponents’ indicates that Sydney Water accepts the preferred options in Exhibit J but the conditions require necessary planning approvals to be obtained.

237. It is noted that the proposal is coming out of sequence from Sydney Water's planning and delivery program. However, this is not a bar to services being provided if there is support from the consent authority and in accord with the Growth Servicing Plan (Exhibit 00) and Sydney Water's policy for Funding Infrastructure to Service Growth.

238. Page 30 of the Applicant’s water and wastewater options study (Exhibit J) states:

“assuming that Sydney Water agreed to the preferred options presented above the next stage will include submission of application for a section 73 Certificate [under the Sydney Water Act 1994] and signing of a Developer Works deed following this Sydney Water will be able to confirm Council support for the development".

239. The Respondent contested strongly for refusal, but in the event that I do not agree with this position proposed two draft deferred consent conditions – D1 a) relates to water and wastewater services:

“D1. The Development Consent shall not operate until Council has been satisfied in relation to the following matters:

a) Water and Wastewater Servicing

A copy of the Part 5 Environmental Planning and Assessment Act 1979 review of environmental factors planning approval for all off-site water and wastewater related infrastructure works required to service the approved development.

…”

240. If the development is not serviced it cannot proceed. Sydney Water infrastructure is approved under Part 5 of the EP&A Act and the council has no decision-making role in the process. Mr Robertson argues that I need to be satisfied that Sydney Water has signed off on the servicing strategy (exhibits J and R). My interpretation of Exhibit 3 attachment D is that Sydney Water's sign off is an in principle approval and Sydney Water requires environmental assessment to be completed, but as the in principal agreement opens a pathway by which the services can be provided, then I consider that adequate arrangements have been made, and that the path to be followed requires environmental assessment.

241. The situation is not dissimilar from that in Narden where the existence of mechanisms to achieve the required outcome was sufficient for a Grampian condition to be applied.

242. If the water and wastewater servicing proposals fail the environmental assessment hurdle, then the project as a whole cannot proceed.

243. Mr Robertson argues that proposed condition D1 a) would have the effect of Council supplanting the role of the certifier, but submits that the Applicant would be prepared to accept the condition as an operational condition to be satisfied prior to the issue of a Construction Certificate. I accept Mr Robertson’s position, and require the operational condition to be imposed.

Onsite water and wastewater services

244. Sydney Water also requires that environmental approvals be obtained for the on-site works related to water and wastewater, and it is agreed that environmental assessment of water and wastewater services on-site is not yet occurred.

245. The Respondent’s suggested deferred commencement condition D1 a) refers only to the off-site works to be assessed under Part 5. Despite the lack of design details for the onsite works covered by Part 4, there was agreement between the engineering experts that, from an engineering perspective, services could be provided and this can be conditioned.

Electricity supply

246. Proposed deferred commencement condition D1 b) refers to electricity supply, which for the site is provided by Endeavour Energy.

“D1. The Development Consent shall not operate until Council has been satisfied in relation to the following matters:

…

b) Existing electricity line and easement

The subdivision as proposed requires the relocation or undergrounding of both of the existing ‘in-service’ feeders located within the easement which traverses the Site- North. Details are to be provided which enable Council to be satisfied that the overhead powerline can be redirected, removed or undergrounded without any negative environmental impacts or any consequential amendments to the current proposal. Details could be provided in the form of either:

• a response from Endeavour Energy’s Network’s Connection Branch to a Technical review request (Form FPJ6007); and/or

• a certified design from a Level 3 Accredited Service Provider approved to design distribution network assets.”

247. Unlike the proposed condition regarding water and wastewater, which would apply to the works off-site, D1 b) is limited to only part of the site. The overhead power line which is to be undergrounded crosses only part of the site. No evidence has been presented that Endeavour Energy would not, when required, agree to the proposed undergrounding. The applicant has suggested a new condition 9 to address concerns about the power line issue.

Other contentions

248. The Respondent in its ASOFC (Exhibit 1) raised 15 contentions which, in the Respondent's view, provided reasons for refusal, and a number of issues where further information was required (B2.1 – B2,10). Between the filing of the ASOFC and the commencement of the hearing a number of the contentions had been resolved, and during the hearing, with the benefit of additional reports and the concurrent evidence, more were resolved. Others are addressed in the draft proposed conditions of consent. Contention 10 (that satisfactory arrangements for designated state public infrastructure have not been made) was resolved by the issuing by the delegate for the Secretary (of Planning and Environment) on 8 November 2018 of a Secretary's certificate to ‘certify that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure’ in relation to DA 2016/1019 (Exhibit 2, Tab 28).

249. A number of contentions relating to the Stage I North earthworks are still pressed (particularly 3, 4, 5), in whole or part, by the Respondent.

250. In paragraph 29 of the Respondent's submissions it is said that ‘much reliance is placed upon the agreement between the engineers. None of them profess to, nor could they, speak to the planning concerns’. In relation to the contentions, the engineers reached agreement that what was proposed was feasible, and that at construction certificate stage the details of how it would be done would be established. The engineers properly limited themselves to engineering matters. A comprehensive joint report of the planners was in evidence as Exhibit 3; in this the planners reached agreement on some matters, but not on others. However, for whatever reasons the planners were not called to give concurrent evidence.

251. In paragraph 36 of his submissions, Mr Wright drew attention to comments made by Mr Williamson that excavation could be involved in future home construction which for the Respondent raised concerns over the actual future landforms. I also recall it being suggested that in some cases there might be potential for excavation to construct a basement in some lots. This is not something shown in the drawings of the various possible dwelling designs in exhibit B at Tab 8. The parties should develop a condition limiting the extent of excavation associated with house construction.

252. Contention 9 is that the proposal seeks consent for a prohibited use in the RE2 Private Recreation zone. This relates to those lots with split zoning.

253. Eighteen of the proposed lots contain split zones, with part of the lot in zone R2 and part in zone RE2. In Table 2 of Exhibit 3 the area within each block included within zone R2 and zone RE2 is provided. In all lots the majority of the land is within the R2 zone, but in two lots (Lot 116, RE2 39.36% Lot 126, RE2 38.74%) the consequence is such that the area in the R2 zone would be smaller than the minimum allowable lot size if that provision applied; however, the proposal is for a community title subdivision and, by virtue of WLEP cl 4.1(4)(b), the minimum allowable lot size provisions do not apply.

254. In some of the other split zone lots, the proportion of the lot within the RE2 zone is only a few percent but in a number it is more than 20%.

255. Residential development is not permitted in the RE2 zone. There are restrictions on development in the RE2 zone with only a limited number of uses permissible. The intention is to provide a transition between the R2 lot and the golf course. The RE2 component of the split zone lots is adjacent to the golf course, but will not be part of the course. In practice it may be advisable for the boundary between the lot and the golf course to be demarcated in some way to make it clear that the RE2 zone within lots is not part of the course. I direct that the parties develop a condition on the demarcation of the golf course boundaries adjacent to split zoned lots, which requires a clear but unobtrusive demarcation.

256. With other site constraints it is possible that the available location for a building footprint within the R2 portion of the lot will not allow much choice in siting a dwelling. This information would be available to potential purchasers, and it would be the responsibility of the consent authority to enforce restrictions – caveat emptor.

257. The remaining contentions are contention 14 – it is not possible to conclude that the likely impacts of the development are acceptable and contention 15 – the proposal is not in the public interest.

258. Contention 14 principally applies to the off-site impacts, which will be subject to consideration under Part 5. If the assessment of the off-site works concludes that their impact is unacceptable, the project will not proceed. For the onsite impacts assessed under Part 4, the proposed conditions can address the issues concerned.

259. The public interest contention 15 was not the subject of any particular submissions or argument. In circumstances where the proposal occurs in an urban release area and where approval for the golf course was granted in 2009, and where there is a neighbourhood plan for the part of the site which is the subject of the current proposal (even though the neighbourhood plan, in general terms is similar to the current proposal but with substantially more development), there is an obvious expectation that the project will proceed provided that the environmental impacts are acceptable. The argument in BGP applying to the importance of zoning in giving certainty to both proponents and the broader community in the planning process could be extended to apply to major proposals being developed incrementally, provided, as in BGP, that environmental impacts were assessed as acceptable.

Conclusions

260. The application is for a large and complex project, and unsurprisingly it has generated a large number of contentions (Exhibit 1). The experts who gave oral evidence were in agreement that many of the contentions had been appropriately addressed, and that the relevant conditions which had been drafted were appropriate. It was also agreed that as the project advanced, some design details would be subject to refining prior to the issue of construction certificates. I am satisfied from the evidence that any changes required would not result in significant changes to the nature of the proposal.

261. The major issue over which the ecology experts did not agree was the nature and ecological impact of the works required for making provision of water and wastewater services. Water and wastewater services are absolutely necessary for the residential precincts to be developed. Neither the construction of residences, nor the provision of services is part of what is sought in the application. Nevertheless, consideration of the impacts of both construction and provision of services is required, and conditions pertaining to both are appropriate for inclusion in the conditions of consent.

262. The Respondent's position remains that consent should be refused, but if I am of a mind to grant consent there should be a deferred commencement condition relating to the provision of water and wastewater. A condition relating to the water and wastewater services is required, but, for the reasons discussed earlier in this judgment, I take the view that a deferred commencement condition in the form proposed by the Respondent is not appropriate; the objective that the Respondent seeks to achieve is better met by imposition of a condition at the construction certificate stage.

263. As shown by the sections of the transcript reproduced in the discussion of the evidence of the engineers there are constraints on individual lots which will affect the location and form of any residences constructed. It was agreed by the experts that the proposed conditions provided appropriate means of addressing most of the issues. The Applicant indicated that they would be prepared to accept conditions relating to the location of residences within lots. I consider the development of such conditions is required, by either amendments to existing proposed conditions or in new conditions.

264. I am of a mind to uphold the appeal and to grant consent but I require additional work on the conditions before consent could be granted. Some of the changes are editorial or in terms of organisation and structure, others require clarification to address potential ambiguities, and a number are required to address issues not currently adequately dealt with.

260. I attach to the judgment a schedule identifying the issues raised in the judgment that need to be addressed by a condition of consent and other conditions suggested by the parties which should be amended, and by determining which version of consent conditions is to be preferred.

Directions

266. I make the following directions:

1. The Respondent is to file proposed draft conditions of consent amended in accordance with the Schedule attached by close of business on Friday 14 June 2019.

2. The Applicant is to file a response to the Respondent’s draft conditions by Friday 28 June 2019.

3. If the parties do not agree on conditions, each party is to file short submissions identifying the competing versions by Friday 12 July 2019.

4. The parties are to approach the Registrar for dates in the week beginning 22 July 2019 for a final hearing.

5. Liberty to reapply on 2 days’ notice.

…………………………

P Adam

Acting Commissioner of the Court

Schedule

********

Amendments

03 June 2019 - Pursuant to UCPR 36.17, typographical errors found at paragraph 3 of the Schedule (attached to the judgment) have been corrected.

Decision last updated: 03 June 2019