Dossor v Ballina Shire Council [2001] NSWLEC 173

Land and Environment Court of New South Wales

CITATION : Dossor v Ballina Shire Council [2001] NSWLEC 173 APPLICANTS PARTIES : David Malcolm Dossor and Ruth Dianne Dossor RESPONDENT Ballina Shire Council FILE NUMBER(S) : 10750 of 2000 CORAM: Sheahan J KEY ISSUES: Development Application :- residential subdivision - permissibility - consistency with planning objectives - merits issues - concerns deferred for later attention LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185; CASES CITED: Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190; Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 DATES OF HEARING: 28/3/01-30/3/01, 2/4/01-3/4/01 DATE OF JUDGMENT: 08/01/2001

APPLICANTS Barrister Mr J Robson Solicitors Hallett & Associates LEGAL REPRESENTATIVES: RESPONDENT Barrister Mr N A Hemmings QC Solicitors Allen Allen & Hemsley

JUDGMENT:

IN THE LAND AND Matter No: 10750 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 1 August 2001

DAVID MALCOLM DOSSOR and RUTH DIANNE DOSSOR Applicants v

BALLINA SHIRE COUNCIL Respondent JUDGMENT

Introduction

1. This is a class 1 appeal against the Council's refusal in June 2000 of a proposal by Mr and Mrs Dossor to subdivide, and develop for residential purposes, part of land they own approximately 1km south of the village of Lennox Head in the Ballina Shire (see Exhibit A1 p6).

2. As described in the Council's notice of refusal (Exhibit A2 annexure 'B'), the applicants' proposal is: To subdivide the subject land into fifty four (54) allotments for residential (detached dwellings) purposes, the embellishment and dedication of certain public reserves, the carrying on of subdivision works involving the provision of roading and stormwater infrastructure and the installation of utility services. The development also proposes the creation of two additional lots – one for the dedicated open space area and the second (proposed lot 56) across the northern escarpment of the subject land.

3. Mr and Mrs Dossor have owned their land for about 20 years, and they grazed cattle on it until late 1999 (T62 L12-14). It is not classified as prime agricultural land, and is relatively steep and degraded. The Dossors in 1995 sponsored its rezoning to permit its development for single detached residential use (see Exhibit A2 fol 19).

4. The current subdivision proposal differs in some respects from the concept plan submitted to Council at the time of the rezoning application in 1995.

5. In refusing the current development application ("DA"), the Council relied on the following grounds (Exhibit A2 annexure 'B' - emphasis added): (i) The development would intrude unreasonably on the amenity of nearby residents; (ii) The development would exceed the capacity of the external road system ; (iii) Council has not been satisfied that the submitted Stormwater Management Plan will effectively operate to prevent pollution of the downstream receiving environment; (iv) The development is likely to exacerbate drainage problems presently being experienced on land adjoining the development site. (v) Council considers the environmental protection measures to be employed to rehabilitate the site are inadequate in the circumstances. (vi) The subject land is located within an area which cannot be catered for in compliance with NSW Fire Service response times. (vii) For the reasons cited, Council has determined that the grant of consent to the development application would be contrary to the public interest .

6. Issue (vi) in this list has since been resolved between the parties, but the others remain.

7. The Council submits, in this appeal, that the court should attach weight to the premise upon which the land was rezoned: The rezoning proposal, the local environmental study ("LES") commissioned by the Council (Exhibit C8 fols 70-262), and the subsequent comments by relevant government agencies, all clearly emphasise the sensitivity of the site, which (as Mr Hemmings says in par 74 of his written submissions) "adjoins and is part of the hydrological system of a littoral rainforest and a major wetlands of regional significance".

8. The Council persisted, at the hearing, with most of the merits issues it raised during the proceedings, and also posed two questions of law which, it argued, would be decisive of the proceedings.

9. The thrust of many of the resident objectors' concerns is that various matters, which they considered should have been assessed by Council at the rezoning application stage, were deferred until the consideration of a specific development application, and that many of those concerns have still not been satisfactorily addressed by the applicants, nor by the Council, in assessing the current DA.

10. The Council contends (Hemmings, par 85) that the proposed development will have an unacceptable impact on :

i. downstream water quality and volume; ii. threatened species; iii. the land zoned 7(l) Habitat Protection; iv. stability; v. the existing creek and wetlands; vi. noise and traffic; vii. aesthetic appearance, viii. open space

11. I record that I had the benefit of a comprehensive inspection of the subject land and its environs.

12. I have determined that the appeal should be dismissed, and my reasons follow.

The subject land

13. The Dossor land (lot 2 in Deposited Plan 622475) has a total area of 14.71ha, approximately 4.75ha of which is a "residual" parcel of land (to be lot 56), not to be developed, on the northern side of the escarpment adjoining Coast Road, and zoned 7(d) Environmental Protection (Scenic/Escarpment). Lot 56 will largely be physically distinct and discrete from the balance of lot 2 on the opposite (inland) side of the escarpment, which balance comprises an area of approximately 9.96ha, approximately 7ha of which is the subject of the residential subdivision component of the relevant DA (No.2000/608, Exhibit A1 and Exhibit C10 fols 297-559), including roads (1.5 ha).

14. The part of the land to be developed ("the subject land") is located in the upper reaches of a catchment draining to a lagoon adjacent to Boulder Beach. The lagoon has a surface area of about 1ha, and drains a "wetland" area of about 10ha, off-site.

15. The subject land has a maximum north-south dimension of 570m and an average east-west dimension of 195m. It is bounded by Survey Street to the north-west, a 10m wide right of carriageway to the north, and an unformed road reserve and rural land to the east. To the west, the site abuts residential lots and public reserves. The "basin" area has a predominant southerly aspect. The highest point is the north-eastern corner, which has an elevation of RL 58m, and it falls in a southerly direction, with the steepest slopes (greater than 1-6) occurring on the eastern side. (One of the subdivision roads is proposed to be split-level to accommodate the slope of the land). The southern-most portion of the site, adjacent to the wetland area to the south, is the low point of the subject land and is zoned 7(l) Environmental Protection (Habitat). A drainage line runs through the western side entering a watercourse near the south-east corner.

16. The subject land was rezoned on 14 May 1999, from 1(d) Rural (Urban Investigation) to 2(a) Living Area, to permit residential development. The rezoning proposal (Exhibit C8 fols 1-69), submitted in 1995, proposed two stages of development - five residential lots adjacent to Survey Street, in an area already zoned 2(a), and, following the rezoning, the creation of 49 additional residential lots, open space and public roads, and three wetlands. A 1995 consent for the five Survey Street lots has lapsed (Exhibit C9 fols 10-14), and the now proposed subdivision is in the format depicted in Exhibit C2.

17. The 54 residential lots now proposed will occupy 5.49ha of the subject land, and range in size from 606.4m2 to 5030m2 (lot 20), and 5698.7m2 (lot 8). Leaving aside lots 8 and 20, the average lot size is 850.7m2. (Exhibit A2 fols 19-24).

18. Proposed lot 55 is an odd shaped area of 2.97ha, designated as open space and drainage reserve in the proposal - 1.8ha is zoned 7(l) and 1.17ha is to be zoned 7(d). Part of the open space will be adjacent to a public reserve behind some of the objecting residents as a "buffer zone". A small area excised from what would symmetrically be lots 24 and 25 and other small portions of land will be added to the area currently zoned 6(a) in lot 55.

19. The proposed subdivision requires, and the DA was accompanied by, an objection under State Environmental Planning Policy No.1 ("SEPP 1") to overcome a development standard requiring allotments to have a minimum area of 40ha in land zoned 7(d) on proposed lots 55 and 56 in the subdivision. (The SEPP 1 objection appears at Exhibit C10 fol 458).

The relevant provisions of the Ballina LEP

20. The Ballina Local Environmental Plan 1987 ("the LEP" - Exhibit C1, and Exhibit C10 fol 91-153) was gazetted on 9 February 1987. The version before the court is amended up to and including December 2000.

21. Zoning is dealt with in cl 8 and cl 9. Clause 9(7) provides: Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

22. The relevant zones for the subject land are as follows: (i) Zone 2(a) - Living Area Zone, which has the following primary objectives: A. (a) to regulate the subdivision and use of land to permit housing and ancillary development where the scale, type and traffic generating characteristics of the ancillary development are compatible with the character and amenity of the surrounding residential area; (b) to permit development which is considered by the council to be an essential land use within the urban living area, but not including a shop (other than a general store); and (c) to allow detailed provision to be made, by means of a development control plan, to set aside specific areas within the zone for varying housing densities as well as other associated urban and tourist facilities.

(It should be noted that no DCP relevant to the subject land has been made in pursuance of Objective A(c)). (ii) Zone 6(a) - Open Space Zone, which has the following primary objectives. A. (a) to identify land that is used or capable of being used for active or passive recreation purposes; (b) to encourage the development of open spaces in a manner which maximises the satisfaction of the community's diverse recreation needs; and (c) to enable development associated with, ancillary to or supportive of recreation use. (iii) Zone 7(d) - Environmental Protection (Scenic/Escarpment) Zone, which has the following primary objectives: A. (a) to protect and enhance those areas of particular scenic value to the Shire of Ballina; and (b) to minimise soil erosion from escarpment areas and prevent development in geologically hazardous areas. (iv) Zone 7(l) - Environmental Protection (Habitat) Zone, which has the primary objective of protecting areas of particular habitat significance.

23. Clauses 23-26 of the LEP relevantly provide as follows: 23. A person shall not, on land within Zone No. 1(d), 7(c), 7(d) 7(f), 7(i) or 7(l) - (a) notwithstanding clause 8 of the Environmental Planning and Assessment Model Provisions 1980, cut down, top, lop or otherwise destroy a tree (other than a tree planted for commercial or landscaping purposes); or (b) clear, fill or otherwise alter the surface level of land, without the consent of the council. … 25. (1) this clause applies to land within Zone No.7(d) or 7(i). (2) A person shall not erect a building on land to which this clause applies without the consent of the council. (3) The council shall not grant consent to the erection of a building on land to which this clause applies unless it has made an assessment as to whether it should impose conditions relating to - (a) the height and location of the building; and (b) the colour of materials, so as to ensure that the building blends with the surrounding landscape and other development and preserves or enhances the scenic quality of the land.

26. (1) This clause applies to land within Zone No. 7(l). (2) The council shall not consent to the carrying out of development on land within Zone No. 7(l) until it has taken into consideration the likely effects of the development on the flora and fauna found in the locality.

The North Coast REP

24. The North Coast Regional Environmental Plan ("the REP" – Exhibit C10 fols 258-296) was gazetted on 15 January 1988, and updated in 1993-94 and 1999. It specifically applies to the Ballina Shire (cl 3), and defines (at fol 289) a "wetland" as: an area of land subject to permanent or periodic inundation and substantially retaining a cover of natural vegetation which generally displays hydrophytic characteristics .

25. Clause 15 (at fols 286-7) provides as follows in respect of development control of wetlands: The council shall not consent to an application to carry out development for any purpose within, adjoining or upstream of a river or stream, coastal or inland wetland or fishery habitat area or within the drainage catchment of a river or stream, coastal or inland wetland or fishery habitat area unless it has considered the following matters: (a) the need to maintain or improve the quality or quantity of flows of water to the wetland or habitat; … (c) any loss of habitat which will or is likely to be caused by the carrying out of the development; … (e) whether the development would result in pollution of the wetland or estuary and any measures to eliminate pollution; … (h) the need to ensure that native vegetation surrounding the wetland or fishery habitat area is conserved; …

26. Clause 29 (fols 283-4) was a source of some concern to the draftsman in terms of possible breach (see Exhibit C9 fol 112), and provides as follows: A draft local environmental plan should: (a) retain existing provisions allowing the making of tree preservation orders; (b) not alter or remove existing environmental protection, scenic protection or escarpment preservation zonings or controls within them, without undertaking a detailed analysis to determine whether there will be adverse environmental effects resulting from such action; (c) include significant areas of natural vegetation including rainforest and littoral rainforest, riparian vegetation, wetlands, wildlife habitat, scenic areas and potential wildlife corridors in environmental protection zones; (d) contain provisions which require that development in domestic water catchment areas or on land overlying important groundwater resources does not adversely affect water quality; and (e) require consent for the clearing of natural vegetation in environmental protection, scenic protection or escarpment preservation zones.

27. Clause 32B (fol 282) provides that, in determining an application for consent to carry out development on land covered by the Coastal Policy, the Council must take into account that policy, and the Coastline Management Manual and Design Guidelines. It goes on to make specific provision for beach front and adjacent open space, particularly in terms of overshadowing.

The issues and questions of law

28. At the hearing the Council pressed the following issues raised in the Amended Statement of Issues, filed in court on 17 November 2000: 1. The proposed development and the effects of future dwellings and ancillary structures would have an unreasonable impact on the amenity of local residents including by reason of: (a) noise (b) traffic (c) visual impact 2. The proposed development constitutes an overdevelopment of the site. 3. The proposed development would exceed the capacity of the external road system (including capacity for additional cyclists and pedestrians). 4. The proposed development will have an unacceptable impact on downstream water quality. 5. The proposal does not adequately address the environmental risks to downstream areas and therefore the precautionary principle should apply. 6. The proposed development does not satisfactorily address measures to mitigate stormwater and the proposed infiltration basins may be subject to modification. 7. The development application does not adequately detail: (a) a soil and water management plan for the site, including measures to control erosion; and (b) the proposed subsurface drainage system. 8. The proposed development is likely to exacerbate drainage problems presently being experienced on the land adjoining the development site. 9. The proposed development is likely to have an unacceptable impact on the threatened flora species Fontainea oraria located on the adjoining public reserve. … 11. The environmental protection measures to be employed to rehabilitate the site are inadequate in the circumstances. 12. The proposed development does not satisfactorily address the risk of geotechnical instability. … 14. The proposed buffer zone between proposed housing and the existing creek is inadequate. 15. The development application does not sufficiently detail the nature and extent of the works proposed or which may be required in that part of the site zoned 7(l) Environmental Protection (Habitat) zone so as to enable an assessment of whether such works are permissible under the Ballina Local Environmental Plan 1987. 16. Whether, having regard to the information provided by the applicant in response to issue 15, the work in that part of the site zoned 7(l) is prohibited. 16A. Whether work proposed in that part of the site zoned 6(a) is prohibited. 17. Inadequate functional open space is provided within the proposed development. 18. Issues raised by objectors. 19. The public interest.

29. Council also posed the following two questions of law (see Issues 15, 16 an 16A):

1. Whether, having regard to the information provided by the applicant in response to issue 15 in the Statement of Issues, the work in that part of the site zoned 7(l) is prohibited. 2. Whether work proposed in that part of the site zoned 6(a) is prohibited.

Issue 18 - The objectors' concerns

30. Many local residents lodged objections at the rezoning, DA and appeal stages. Many of the written objections are before the court (Exhibit C11 fols 58-179, and Exhibit C13), and, when the court visited Ballina for its site inspection, and the hearing of some local evidence, approximately 50 local residents attended.

31. Mr Hemmings called several nearby residents (see map in Exhibit C25) to present the views of the local community, namely Sheryl Johnston (Exhibit C24), Shaun Eastment (Exhibit C26), Ross Francis, Michelle Chandler (Exhibits C27, 28, 29, 30, 31 and 39), and Terry Long. He also called Councillor Alan Rich (Exhibit C32), and an expert engineer retained by the local objectors (referred to as Concerned Citizens of Survey Street, or as the Survey Street Action Group), Greg Alderson (see also Exhibit C22). I will return to the evidence of Rich and Alderson.

32. Essentially, the nearby resident objectors are concerned with:

i. soil stability, drainage and other hydrological and water quality issues, flowing from the topography of the subject land, ii. the ability of the existing watercourse to cope with residential development on the subject land, iii. traffic and traffic noise issues, iv. the exacerbation of the local mosquito problem, by ponding of water on the subject land, v. inadequate provision of recreational open space, children's playground facilities, etc, and of pedestrian and cycle facilities, vi. traffic and drainage arrangements, increasing the level of danger for children, vii. inadequate "buffer" and other protection of "endangered" flora and fauna, and viii. visual impact/loss of view/privacy issues, including "amphitheatre" noise effects of development, and loss of semi-rural ambience of area.

33. The brevity of this summary is not to be construed as any lack of appreciation by the court of the widespread, sincere, and detailed nature of the local community's concerns with the subdivision proposal. There is community acceptance of some residential development of the subject land, but the current proposal is regarded as an overdevelopment, with undesirable environmental consequences, and the objectors are concerned that some serious matters, deferred at the rezoning stage, are again deferred, to the construction stage, and may not receive adequate attention.

34. As many of these objector concerns date from the consideration of the 1995 rezoning proposal, and concern alleged departures from that proposal's original concept for the site, it is appropriate to deal with that proposal, and its comparison with the current one, at this point.

The 1999 rezoning, and the current proposal

Background

35. The 1987 LEP zoned a range of rural areas within the Shire, including the subject land, for "urban investigation" purposes, and the subject land was first identified for future release in the 1991 Ballina Urban Settlement Strategy.

Rezoning proposed with LES

36. The applicants' consultants, Geolink, made a submission in May 1995, and the Council resolved in July 1997, in support of the rezoning of the land for residential subdivision purposes (see Exhibit C8 fols 1-69).

37. The LES was finalised in September 1997 by Jim Glazebrook & Associates Pty Ltd (Exhibit C8 fols 70-262).

38. Glazebrook concluded (fol 72) that there "are no absolute constraints to development or rezoning of the land", although some areas would require management measures which could be addressed through the development control process. He said: Significant opportunities for residential development of the study area are presented by the availability of services, good access to town centres, pleasant aspect and compatibility with surrounding land uses. Moreover there are no significant conservation values attributed to the land by virtue of matters related to flora, fauna, archaeology or heritage .

39. Glazebrook relied upon and referred to a July 1997 geological study by Insite Geology, a "Preliminary Flora and Fauna Assessment" by Woodward-Clyde Pty Ltd (14 November 1997 fol 147ff), and an engineering report by Martin Findlater & Associates Pty Ltd on Traffic, Stormwater Management and Erosion Control (August 1997, fols 251ff).

40. Glazebrook noted (at fol 89): '… the site is underlain by BASALTIC AGGLOMERATE - a strong volcanic rock comprising subangular and angular boulders of basalt within a matrix of indurated finer material. This rock type is part of a basaltic sequence of rocks that emanated from Mt. Warning in the Tertiary geological era. The agglomerate is exposed as a rock platform in the creek course in the southern part of the site and as surface boulders and gravel-size fragments that occur variably but are more common on the steeper upper slopes in the eastern part of the site (Figure 1).

Colluvial and residual soil derived from the basaltic rock is typically dark-brown to red-brown, very stiff to hard, sandy to silty, high plasticity clay with frequent boulder to gravel-size fragments of basalt. In the absence of any definite subsurface information, the soil profile above weathered rock is anticipated to be of the order of about 2 m thick'.

Acid sulphate soil mapping by the Department of Land & Water Conservation (Soil Conservation Service) classifies the study area as 'No Known Occurrence' of acid sulphate conditions.

3.2 Hydrology & Drainage

A watercourse traverses the site from north to south. The watercourse appears to be fed by active groundwater seepage as well as occasional stormwater runoff via pipes on the northern and western study area boundaries. The land drains an external catchment along its northern and western perimeters. Drainage flows feed the coastal wetlands systems to the south. The study area itself is generally well drained and flood free.

41. He also noted (at fol 105) that the Insite assessment indicated no evidence of past or present site instability. Three instability zones were identified in the range of low to moderate. Site specific engineering investigation, it was noted, would be needed pre-construction.

42. Hydrology and drainage matters were further dealt with (at fol 106), and Glazebrook noted that "the watercourse is well placed to allow the introduction of artificial wetland filter treatments to control runoff water quality to downstream wetlands". A wetland area of 5000m2 would be required for a 12 day retention time, and there was sufficient area available to accommodate a wetland filter of that size.

43. Flora and fauna matters were also dealt with (at fols 106-7). Remnant rainforest would have to be preserved and the presence in the nearby public reserve adjoining the western boundary of Fontainea oraria "presents a constraint in that rezoning and future development of the study area could impact on the plant". A buffer was recommended, but it does not look large on the LES plan (at fol 108).

44. To cope with traffic, it was recommended an upper limit density of 13 dwellings per hectare be observed, but it was noted (at fol 110) that development was likely to be well below that figure.

45. There were no signs of serious soil erosion or poor water quality problems relating to the sedimentation of the site's Krasnozem soils. Caution was proposed during construction works to prevent soil erosion and degradation of water quality (fol 25), but the court notes that Annexure 'K' to the DA is a set of water quality results which did not find their way into the LES, which was prepared on the basis of modelled assumptions concerning stormwater quality and the measures proposed by the applicant.

46. It was intended that "reservation linkages" would be used both for functional open space and drainage reserve purposes with the site runoff being directed to the existing watercourse and drainage lines (fol 30). The existing watercourse was seen as the key design element "and will become the major visual feature of the development as well as proving appropriate retention and control of site drainage" (fol 30). It was proposed that natural features be used for site drainage, with the owner then enhancing downstream water quality (fol 115).

47. The Environment Protection Authority ("the EPA" - at fol 135) was particularly keen that the LES should propose strategies for the integrated management of stormwater runoff and sediment to minimise or ameliorate potential negative impacts. The EPA identified stormwater management as a "critical issue" to be addressed in the preparation of the LES (see Exhibit C8 fols 134-136), and recommended attention to its "Managing Urban Stormwater; Strategic Framework" document (see Exhibit C6). The Department of Land and Water Conservation ("DLWC") also had concerns (fol 127).

48. Council had not then developed any overarching stormwater management plan for the whole catchment. Pending the development of such a plan, the EPA expected that this development would be "suitable for aquatic eco system protection and primary contact recreation" in accordance with the ANZECC 1992 Guidelines "most of the time". The rezoning concept plan envisaged a number of essential water treatment features. Stormwater runoff from every proposed lot was to be treated, with the result that the proposed water quality measures were to reduce by an alleged 35% the current phosphorus export rate for the subject site (Exhibit C9 fol 19). Mr Hemmings observed that the proposal as now framed could not possibly meet the ANZECC standards "most of the time".

49. Insite estimated the flow in the creek draining from north to south at about 8 litres per second, and identified "clearly evident zones of active groundwater seepage emanating from below about Elevation 30 m" (Exhibit C8 fol 142). The report also noted (at fol 143): Colluvial and residual soil derived from the basaltic rock is typically dark brown to red-brown, very stiff to hard, sandy to silty, high plasticity clay with frequent boulder to gravel-size fragments of basalt. In the absence of any definite subsurface information, the soil profile above weathered rock is anticipated to be of the order of about 2 m thick.

50. The Insite report made the following recommendations (at fol 144): The actual extent of saturated terrain fed by the areas of active seepage on the eastern side of the creek should be defined by survey. Exploration of the saturated terrain will be difficult because of the boggy surface conditions but excavation of at least three pits around the margins of the wet area would give information on soil profile thickness and the source of the seepage.

A subdivision road into the site from Survey Street would require earthworks to maintain a realistic grade through part of the area designated zone B in this report. Information to enable excavation assessment, material useability and cut slope recommendations would be obtained by test pitting and sampling at three locations at least along the proposed road alignment.

51. Woodward-Clyde made the following comment (at fol 181): Apart from the above mentioned impacts on wetland and Rainforest ecosystems, alterations to hydrology can alter local flooding regimes. Urban development, with the increase in hard surfaces, will result in higher volumes and velocities of stormwater run-off. These alterations can lead to the scouring of vegetation and soil and subtle changes to the habitat around the affected area. Increased sediment deposition will also occur when the stormwater slows down in the wetland. An effective hydrological connection must be maintained between the study site and sensitive areas to the south including SEPP 26 - Littoral Rainforest No.37 and SEPP 14 - Wetlands No.91a and 91b. Detrimental impacts must be ameliorated to ensure the long term health and viability of these areas.

52. Findlater recommended that the engineering issues could generally "be addressed in the design phase to mitigate any potential impacts", but particularly required the residential density limit of 13 and provision for a wetland filter of 5000m2, with both of which the Geolink rezoning proposal complied.

Council processes the Rezoning

53. The study and the relevant draft LEP were exhibited over the December 1997-January 1998 period.

54. Significant submissions by resident objectors were received, but the Council's Chief Town Planner reported favourably on the LES and the application on 26 February 1998. The Council Engineer advised the Council that the EPA stipulation was unreasonable - the EPA would have to licence the stormwater management system in any event – but, the Council backed the EPA, rather than its own engineer.

55. Council advised Geolink that a more comprehensive assessment was required of stormwater and drainage management, traffic and road impact, and safe children's play areas.

56. Geolink responded to the Council's resolution with a new report dated 8 October 1998, (Exhibit C9, fols 95-26).

57. The grassed swales option, including rehabilitation to the riparian zone, stabilisation of the existing stormwater outlets, installation of litter racks on each outlet and the construction of three water quality control ponds along the length of the natural drainage line, appeared as Option 3 (fol 72 of that report).

58. In respect of open space it proposed 2.6 ha of fully embellished open space to be dedicated free of cost to Council. That space was to integrate existing habitats and natural areas with open space: District or large local parks are not proposed in this development, mainly because of the large traffic generation and other amenity impacts of these facilities. A contribution in lie of on-site provision is proposed. A small local play park with a comprehensive range of play equipment installed is proposed for the use of residents of the estate and environs (fol 60).

59. Further exhibition of the documentation in October-November 1998 generated more objections. Significant concerns expressed by the EPA, DLWC and National Parks & Wildlife Service ("NPWS") were noted.

The Minister's decision

60. The Council submitted the draft LEP to the Department of Urban Affairs and Planning ("DUAP") on 10 December 1998, but the Department sought further information from the Council, notably, confirmation that the EPA and DLWC were satisfied, and that appropriate environmental protection zone for remnant vegetation at the southern end was achieved (see fol 104).

61. The DUAP Section 69 report (Exhibit C5) clearly indicated that some of the important concerns would be deferred to the development stage, including, specifically, resolution of drainage problems.

62. Concern was expressed about the habitat issues and DUAP viewed favourably the NPWS submission that the southern portion of the subject land should be zoned Environment Protection, but it was too small in area to be included in SEPP 26 – Littoral Rainforest. The DUAP minute refers to the need for a separate development application and a more stringent level of environmental assessment before any proposed drainage works would be allowed in that zone. (The Council contends that this requirement is not satisfied in the application now before the court).

63. The Minister then made the draft LEP (Amendment 42 – gazetted 14 May 1999). In agreeing to the rezoning, the Minister satisfied himself that the partial residential development of the subject land was consistent with the REP and the Coastal Policy (Exhibit C10 fols 1-90). Both Council and the Minister recognised that the rezoning was appropriate in the context of an agreed urban land release strategy.

The current proposal

64. The development proposed now is "integrated development" (Exhibit C11 fol 1), as work proposed in the vicinity of the creek line on the site requires a permit under Part 3A of the Rivers and Foreshores Improvements Act 1948. Such a "3A" permit was obtained from DLWC (Exhibit C10 fols 453-455), on conditions, but has expired.

65. Condition 2 of that 3A permit provided that a bridge structure envisaged for a subdivision road referred to now as Subdivision Road B must not reduce the capacity of the watercourse over which it was to be built. No permit was sought for works in the 7(l) land, but the Council contends that on the applicant's own evidence (Mr Zerk) the condition of the permit would be breached, as the proposed culvert at the location of such bridge structure will be narrower than the watercourse in times of flood.

66. The DA of 28 January 2000 suggests that the layout change is a "minor" change from that submitted at the time of the rezoning and analysed in the LES. It contends that the only significant change is the provision of a 15m buffer between residential lots and the public reserve containing the Fontainea. Mr Hemmings does not accept that the proposal is essentially the same – the internal roads have been rerouted, the lots are in a different layout, there is a different proposal for water discharge, and there are different proposals for the creek and wetland area.

67. The court agrees with Mr Hemmings that the changes are substantial.

68. His written submissions (par 13) note the following differences between the concept proposal at the rezoning stage (Exhibit C8 fol 33) and the development application now before the court: (a) a strip of land along the southern boundary of the site is now zoned 7(l) and as a consequence is no longer appropriate to be used for a water quality control wetland and 'open space'; (b) the wetland concept has been replaced by the proposal to treat stormwater by means of infiltration basins and infiltration swales; (c) proposed play areas and areas for passive recreation are no longer proposed; (d) earlier claims to reduce nutrients such as phosphorous by 35% have been altered. The Applicant's various claims about the pollutant reduction capacity of the current proposal are set out in the summary document which is Exhibit C33. (e) The lot configuration has altered. Proposed subdivision road B has been relocated southwards so that a greater portion of that road now lies in the open space zone. This has permitted the creation of an additional lot in the north western section near the public reserve containing the threatened species.

69. Those submissions also note (par 8) that the DA, unlike the concept plan, now does not provide for the treatment of stormwater runoff from all lots, and proposes a different water quality control system - an infiltration system for part only of the subject land, rather than a wetland system for the whole of that land. The now proposed swales are to be aligned along the existing contours to minimise earthworks. The assertion that there will be no ponding solves a mosquito problem on the land. The lots are differently configured, and there are different targets for nutrient control.

70. The applicants assert that soils on the subject site will achieve an infiltration rate "averaging 50mm per hour" (Exhibit A1 fol 68), a figure that the Council says cannot possibly be achieved. Infiltration basins with a maximum surface size 326 m2 and 324m2 are substantially smaller than the wetland ponds envisaged at the rezoning. Folio 55 (of Exhibit C11) makes clear that the proposed infiltration basins would have surface areas of approximately 450-500 m2, when full, with a water holding capacity of 500-600 cubic metres, but on an infiltration capacity of 37.5 (cf 50). The basins were modelled assuming infiltration rates of 20 and 30mm per hour to provide conservative assessments for the performance of the system. The series of infiltration swales have a combined total surface area of approximately 1800 m2, when full, with a water holding capacity of 2200 cubic metres. Mr Hemmings says that ponding in the swales is, therefore, inevitable.

71. It should be noted that in the DA this water quality control system remains conceptual, and is to be expanded as part of the detailed design stage, to ensure that water quality and local hydrology is managed in a fashion consistent with the stated site planning objectives for stormwater drainage (see fol 71).

72. It is also envisaged that the swales area will play an important passive recreation role.

73. Extensive planting is proposed to encourage native fauna habitation (see fol 76), and some plantings were undertaken before the court's site inspection, but the DA relies on the preliminary Flora & Fauna Assessment of Woodward-Clyde, used for the rezoning proposal.

The processing of the DA

74. The DA documentation was exhibited for public comment in February/March 2000.

75. The EPA commented (see fols 5-6 of Exhibit C11) that "inadequate information has been provided" in respect of stormwater management. Stormwater should be treated prior to entering the creek. In particular the EPA wanted levels of the current net load of pollutants leaving the site, rather than those at the top of the site. Attention was drawn to the treatment techniques booklet (Exhibit C6).

76. The EPA also wanted a riparian buffer zone of 20m from the creek to the boundaries of residential properties. At fol 27 (of Exhibit C11), Geolink argues against the 20m buffer zone.

77. The Council Officers recommended consent, subject to conditions, which are not available to the court (fol 166). The following aspects of the recommendation are noted:

a. The concurrence of the Director General of DUAP would be required. b. The officer recommends that the Council's DCP be modified to provide the land with an L2 - Low Density (Dwellings & Dual Occupancy) category if consent is granted to the subdivision. c. Council's officers considered the applicants' responses to the Coastal Policy to be accurate, and presumably adequate. d. The report notes that the 15m buffer for the Fontainea is in accordance with the recommendations of the NPWS species recovery plan. Implementation of the buffer would be undertaken in liaison with the NPWS (fol 175). e. Site stability of each lot was to be the subject of an individual study and lot 25 was seen to have some risk. f. Under the heading "The Public Interest" (fol 167) the Council officers noted the general consensus that the subject site has urban development potential - it was so identified through various processes up to and including Amendment 42, and was consistent with the number of urban land release strategies adopted by Council.

78. The Council rejected the officers' recommendation, and refused the DA on 22 June 2000.

The Questions of Law

79. The Council raised the following questions of law:

1. Whether, having regard to the information provided by the applicant in response to issue 15 in the Statement of Issues, the work in that part of the site zoned 7(l) is prohibited. 2. Whether work proposed in that part of the site zoned 6(a) is prohibited.

80. The Council contends that whatever "development" is either proposed, or possibly required, within the 6(a) and 7(l) lands is prohibited by the relevant clauses of the LEP – clauses 9(7), 23(b), 26 – set out above. The relevant "development" may be actual works and/or land use.

81. The applicants contend that their proposed earthworks are "environmental protection works" which are permissible with consent. Both parties acknowledge that all development in the 7(l) lands must be consistent with, i.e. not antipathetic to, nor incompatible or inconsistent with, the objectives of the zone. See Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (at 27), Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 (per Clarke JA at 192), Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 (at 439), Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190, and Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163 (at pars 25-28).

82. The respondent argues that the relevant drainage and other engineering works are of the type dealt with by clause 23(b), namely surface-altering works, but they have not been specified adequately to enable the necessarily specific consent to be granted (cl 9(7)), and/or to assess their impact on flora and fauna (cl 26). The flora and fauna impact assessment done in respect of the LES concerned a "different" development from that now proposed, but is still relied upon. The LES findings and other information made available to the Minister resulted in his decision to zone the southern portion of the subject site 7(l). Since that decision the applicants have moved from a wetlands-based system to a system of swales, infiltration ponds and CDS units, a system which will require incompletely particularised development works in the 7(l) zone, the adverse impacts of which have not been addressed.

83. The applicants argue that their proposal includes highly desirable rehabilitation works within the 7(l) lands, works which: (i) are not antipathetic to the zone objectives, focussed as they are on the protection of areas of particular habitat significance; (ii) were contemplated as desirable at the time of the rezoning; (iii) are less environmentally intrusive than those earlier proposed; (iv) are clearly articulated in the current proposal; and (v) were endorsed by Council officers in their favourable recommendation to the Council.

84. The court accepts that the proposed works in the 7(l) lands can be clearly understood from the material advanced by the applicants, and considers that they meet the "consistency" test laid down by the cases to which reference has been made.

85. The court, therefore, concludes that all of the applicants' current proposals, so far as they can be clearly gleaned from the DA, are permissible with consent.

86. However, the court is not satisfied that all of them have merit, and/or have yet been adequately defined or assessed.

87. I, therefore, now move to a consideration of the evidence the court received on the major merits issues in dispute.

The town planning evidence

88. Council relied upon the expert evidence of Tony McNamara, a senior planner with ERM Australia (Exhibit C12), with extensive local government service. Mr McNamara opines that the proposed development has failed to address the critical issues addressed in the LES, namely, water quality, geotechnical stability, and the protection of the remnant littoral rainforest.

89. When asked if there was substantial or significant benefit to be gained from the approval of this development, McNamara answered that residential development had some advantages, but that this proposal was over development and should not be approved as proposed, having regard to the nature of the wetland, the lack of assessment required by the North Coast REP, the lack of useable open space, and the concern in regard to drainage measures. The habitat zoned land at the southern end will become a local playground in the absence of alternative suitable open space. There would be consequent environmental damage.

90. In re-examination McNamara said the unresolved constraints were the southern area, the wetlands question, the location of the creek, and the 20m buffer, water quality treatment, and associated geotechnical issues.

91. The applicants' planner, Stephen Connelly has been the managing director and chief town planner at Geolink since July 1991. He worked for Ballina Shire Council as a town planner from September 1981-July 1986, and has worked in his own planning and engineering consultancies since.

92. Connelly has been involved in this proposal since the middle 1990's and believes it is responsive both to the site and to the neighbours. His principal report is Exhibit A2, but, in his later report (Exhibit A3), he comments that McNamara is the only town planner who has written a report suggesting the refusal of the proposal. Council officer Barnier, a town planner of 25 years experience in statutory planning, recommended to Council the conditional approval of the proposal, and his superior, the Council's Chief Town Planner, Willis, concurred in the report.

93. Use of the infiltration system will provide for more passive open space. That change in water treatment was made to meet local objections and concerns, but the applicants are prepared to revert to the pond system.

94. The road design had been changed because of objections regarding the number of lots that were fronting the reserve containing the Fontainea. When confronted with the fact that the relocation of the road established an additional lot in the north-western corner, Mr Connelly agreed, but indicated that open space was also enlarged, as shown in Exhibit C2.

95. Connelly asserted that his masterplan (3.2) was completely accurate in its depiction of the watercourse on the subject land and constituted the application for works to be done on it, namely, removal of weeds, repair of eroded gully, and the planting of trees. The location of the watercourse in the 7(l) land is not affected at all, and the water velocities should be slower.

96. On the 20m riparian buffer question, Connelly pointed out that it was an EPA recommendation, not an EPA requirement. He estimated that the buffer, although variable as among the individual proposed lots, extended for an average of about 11m from the creek.

The geotechnical evidence

97. The principal witness for the applicant on geotechnical matters was Dr Philip Shaw of Coffey Geosciences Pty Ltd (see CV included in Exhibit A6). He has extensive experience in England, South Africa and Australia, having become Queensland manager of Coffey in 1990. The principal witness on behalf of the Council was Robert John Carr, the principal of Robert Carr & Associates Pty Ltd (see CV Exhibit C34). He has been self-employed since 1994, with offices in Newcastle and Port Macquarie. He was formerly with Douglas & Partners, and, prior to that, Longworth & McKenzie.

98. The two experts conferred and their conference report is Exhibit C23. Neither departed from the opinions expressed in their written expert reports (Exhibits A6 and A7 cf Exhibits C20 and C 21).

99. Carr's principal report (Exhibit C20) refers to his experience in carrying out a similar detailed geotechnical investigation for the Ballina bypass.

100. Carr opined that the subsurface conditions had been inadequately investigated to enable assessment of subsurface structure and groundwater condition. "The further into the development process this additional investigation work is carried out the more difficult the remedial works and changes, if any, may become to effect". He set out the additional geotechnical investigation work required (see Exhibit C20 p 8). He proposed that the geotechnical issues in relation to stability and drainage be resolved by the drilling of four bore holes at the approximate locations shown in the plan attached to Exhibit C23 in order to investigate the interface between the basalt and the underlying agglomerate. This would define the understanding of groundwater flows.

101. The experts agree that the further investigations proposed will resolve the geotechnical issues in relation to stability and drainage, and that, even if a weak layer is encountered with adverse groundwater conditions, technical solutions can be designed to allow residential development to proceed, but they disagree as to when this investigative work is required.

102. Carr believes that due to the high potential cost of stabilisation works if adverse conditions are found, the investigations should be carried out prior to any development approval and this would facilitate refinement of the drainage design. Shaw believes that as there are technical solutions, the investigations can be carried out as part of the detailed design stage.

103. Shaw's original report (Exhibit A6) is dated February 2001 and refers to Coffey's 1986 regional geotechnical zoning study for the residential areas of Ballina Shire, and its October 1999 work.

104. Coffey is a reputable company, which has operated in the Ballina area for many years, and has extensive experience with regional stability assessments for residential development. Coffey's 1999 report is generally consistent with its 1986 study - details of both are set out in Exhibit A6 - and Shaw expresses the view that the 1986 and 1999 materials were sufficient for Council to assess that the proposed development had an acceptable risk of geotechnical stability provided the recommendations in those reports were followed.

105. In his later report of March 2001 (Exhibit C21), Carr argued that the stability analysis presented by Coffey is limited in application due to the model upon which it was based - infinite slope length and constant grade – and is, therefore, too simplistic. While adequate for part of the slope, it was not a valid approximation of conditions at the break of the slope where the seepage was occurring.

106. Carr also expressed adverse comment about the Geolink reports on the subsurface drainage system. The long term operation of subsurface drains cannot be assumed without inspection, maintenance, and allowance for the possible need for replacement. Individual householders should not be required to make quite deep subsoil drains in situations where failure of the drains could have a widespread impact. His proposed further investigations would facilitate the design of a suitable drainage system to control the groundwater and boggy conditions on the site with a reasonable level of confidence.

107. In his report in reply (Exhibit A7) Shaw deals with Carr's observations (at p 3): I do not agree that further geotechnical investigations are required to assess the location of the inferred interface between the basalt and agglomerate. The location of this layer is not considered to be relevant to the design and construction of the proposed development. Given the occasional nature of interface layers as observed elsewhere by RCA it is highly unlikely that the layer could be found by further investigations. The previous Coffey report provided guidelines for the development of the site, which involve the use of good hillside practice. The adoption of these guidelines will limit excavation depths to predominantly near-surface soils. These guidelines deal in a satisfactory manner with any reasonable concerns regarding the proposed development of the site. Sufficient investigation has been carried out to allow a decision that development of the site may proceed. All residences in the subdivision will be subject to appropriate, individual geotechnical investigations for design purposes.

108. Despite Coffey's reputation and Shaw's confidence, Carr's evidence left the court with serious concern that further geotechnical investigation should be carried out before any further development is approved for the subject site.

Stormwater matters

109. Much of the evidence on stormwater management evolved around the interpretation and application of the EPA publication "Treatment Techniques - Managing Urban Stormwater" (Exhibit C6), dated November 1997, in which various stormwater treatment measures are charted for appropriate soil types (on p10 in Table 3.4).

110. Relevantly it is suggested by the publication that infiltration trenches are not suitable to soils of the sandy-clay-loam type (4.5mm infiltration rate per hour) or clays of lesser infiltration rate. Table 5.1 at p47 charts the average pollutant retention of filter strips.

111. The appropriate design for infiltration trenches is discussed in s 5.5 (pp 63ff). They are said to be appropriate for areas with soils of moderate permeability. Site selection criteria have been developed in the US to identify potentially suitable sites: the soils should not have more than 30% clay, or more than 40% of clay and silt combined. When the facility will drain to groundwater, the maximum infiltration rate should be 60mm per hour.

112. The section also says (p67) that pre-treatment of runoff entering the infiltration trench is generally necessary for the removal of coarse particulates to minimise clogging. This pre-treatment can consist of a grass filter strip, grassed swales, a sand filter or gross pollutant trap.

113. Section 5.6 (pp 69ff) deals with infiltration basins. The same site selection techniques are considered appropriate. Moderate underlying soil permeability is required.

114. The applicants' key witness on these matters was Craig Zerk, of Geolink (since June 1991). He formerly worked as a design engineer from 1981-1988 with Ballina Shire Council, and prior to that with the Public Works Department (see CV in Exhibit A4). The Council relied on the evidence of Stephen Downes, recently recruited to ERM Australia and an engineer of ten years standing in private and public sectors. Downes and Zerk were directed to confer. A conference report was tendered and then withdrawn as agreement upon it could not be reached. Both men gave oral evidence to supplement their written materials (Exhibits A4-A5 cf Exhibits C14, C15 and C33).

115. In Downes' February 2001 report (Exhibit C14) he noted that the approximate catchment area of the lagoon is 126ha, and overflows and seepage from the lagoon flow into the Pacific Ocean. He noted the high failure rate recorded in the United States and Europe for infiltration systems, due to poor site selection, inadequate maintenance and poor design, and expressed the view that more detailed soil and groundwater investigations are required before it can be established that the proposed infiltration systems are suitable for the site. The infiltration systems should not be approved until it has been established that there is no significant risk of leaching of pollutants from the infiltration system to groundwater (p12 of Exhibit C14).

116. He also expressed the opinion that the proposed arrangement of the infiltration basins increases the risk of long term maintenance problems and failure. The basins should be located off-line, and in parallel, to reduce the risk of clogging and nuisance ponding. The maintenance of basins and swales will be difficult and expensive. Access will be a problem and is inadequate in the case, particularly, of lots 49-53. The access would need to be stable roadbase 2.5m wide. Surface ponding will bring with it the problem of mosquitos. Downes was also critical of the construction programme and the use of infiltration basins as sediment basins during construction.

117. Any failure of the infiltration systems would result in a nett increase in sediment and nutrient loads in the downstream wetlands.

118. The deletion of the berm from the original concept in the LES allows a direct runoff from lots 22-25 (approximately 0.5ha), untreated, into the rainforest. The two proposed wetlands with a combined area of 5,000m2 were replaced with two infiltration basins with a confined surface area of 650m2 plus the swales. Downes made the calculations to show that the concentration of pollutants in the runoff from the site as now proposed all exceed the target treatment values recommended in the LES (assuming that they all work to design). Downes comes down squarely in favour of the original wetlands proposal.

119. A summary of the water quality test results and nutrient calculations appear in Exhibit C33.

120. Zerk has lived and worked in Ballina for 22 years. He has a particular interest in catchment management. He worked on the rezoning application, and on the redesign for the DA, and was involved in the meetings with the DLWC regarding the 3A permit. He contends in his conclusions to his initial report (s 5.4 p48 of Exhibit A4) that the development will result in a reduction in the peak rates of stormwater discharge from the site and so serve to reduce the adverse hydrological impacts resulting from previous urban developments within the catchment.

121. Zerk endorses the operation of the infiltration basins both as to size and location. The stormwater management works will have no impact on the Fontainea. There will be substantial improvements made to the water quality and hydrology of the watercourse which is significantly degraded as a consequence of present and past land uses.

122. He observed (s 6.6 Exhibit A4 p54) that the 20m buffer zone which is suggested by the EPA is based on rural land use applications where no significant measures are adopted to manage stormwater runoff. The buffer zone proposed in the DA varies from 8m to 20m, but a range of other measures are to be implemented to enhance the environmental protection functions of the riparian zone such that the development will achieve the objectives intended by the EPA stipulation of a zone of 20m.

123. In his second report (Exhibit A5) Zerk agreed with Downes that the berm deleted should be again included, but he indicated that the inclusion would not affect the results of the stormwater quality modelling results or the overall catchment hydrology.

124. Zerk in his oral evidence adhered totally to his written reports. He was particularly supportive of the CDS unit. He explained that the water sample results (in Appendix K Exhibit A1) were not given to the Council or the consultants "to save them hypothesising", and because they did not ask for them.

125. The key significant factor in the performance of the swales is their infiltration capacity. On the question of the infiltration rate he actually got a reading above 50 (55.2) and, therefore, set an average of 50 in the site area of the infiltration basins. The swale behind Johnston's house will be shallow, so there will be little water ponding. He calculated evaporation rates for 2080m2 of filled swales area.

126. In Downes' report in response to Zerk (Exhibit C15 p6), he expressed concern about the testing of infiltration rates: …it is unclear whether the measured infiltration rate of 30mm/hr is the saturated infiltration rate.

During infiltration tests most soils have a high initial infiltration rate that decreases over time until it approaches a constant rate. This constant rate is the saturated infiltration rate. The saturated infiltration rate with a safety factor is the rate that should be used in the design of infiltration systems.

127. Downes concluded that the development as proposed is likely to increase sediment and nutrient loads to downstream wetlands and have an unacceptable impact on the water quality in those wetlands. The case made for the contrary conclusion is based on inadequate modelling which overestimates pollutant loads from the existing site, fails to consider pollutant load reductions by the existing wetland areas on the site, inaccurately predicts a reduction in flow volumes and pollutant loads after development for the case with no infiltration of surface runoff and overestimates pollutant load reductions for some treatment units (p16 of Exhibit C15).

128. The hydrologic assessment uses infiltration rates for the basins and swales that are inconsistent with the soils on the site and does not consider catchments downstream from the site. It provides excessive reduction in peak flows after development in large storms where the infiltration basins and swales are assumed to be full (p18). Downes included in his report an article on infiltration practices by Eric Livingstone of Florida.

129. In his oral evidence Downes supported the EPA recommendation of a 20m buffer. He calculated on Zerk's figure 7.2A varying buffers represented by the particular lots. Some provided zero and some others only 5 to 7m.

130. The saturation infiltration rate on this site is 4 down to 2mm per hour, not 30mm as asserted by Zerk. Downes withstood strong cross-examination on his conclusions.

131. Again the court respects the evidence of the applicants' expert, but is left with some serious concerns about stormwater management.

Ecological issues

132. The applicants relied on the evidence of Dr Peter Brennan and Dr Peter Breen. Dr Breen is an aquatic ecologist with expertise in wetland ecology, stream ecology and water quality. He has particular expertise in rural and urban runoff management, constructed wetland technology and waterway rehabilitation (CV in Exhibit A14). Dr Brennan is an ecologist with Geolink, formerly an academic in Hawaii and Cairns (CV in Exhibit A15). His doctorate is in the edge effects on dry rainforest.

133. The Council relied on the evidence of Dr Toivo Zoete (Exhibits C18 and C19), who gave oral evidence both before and after Dr Brennan, and also relied upon the evidence of Councillor Rich. Zoete is a recent recruit to ERM, as senior ecologist. He has practised as an environmental scientist since 1989 and was a freelance ecologist and academic in Brisbane from 1991-1997 (CV in Exhibit C18).

134. Councillor Rich gave evidence as an objector (CV in Exhibit C32). He was elected to the Council after the rezoning decision. He has an Honours Degree in Applied Science and qualifications in Coastal Management. He has tutored in biology and works as a rainforest botanical consultant. His major concern is the Fontainea, which is very light sensitive. Ensuring its reproduction is just as important as its protection. He doubted that the proposed 15m buffer to the adjoining Amber Drive reserve (lot 63 DP 793489 – see Exhibit C7 Item 3.3, and map in Exhibit C25) was adequate, particularly as he believed the current specimen, one of only ten mature specimens in the world, is "stressed".

135. The experts conferred and the conference report (Exhibit C35) indicates agreement on some issues.

136. They agreed that the maintenance period for the buffer plantings should be increased to three years and that the species were appropriate. They agreed that the creekline rehabilitation measures were adequate, provided a map was supplied showing the areas where weeds would be eradicated, and that the maintenance period be extended to three years with a clear undertaking that there will be no weeds left in those areas after three years.

137. They also agreed, in respect of the Fontainea, on the provision of a 15m buffer, and person-proof fence, and that the increased risk of litter was no longer an issue. They disagreed on the buffer size needed to reduce the risk of fire and weed invasion to acceptable levels. They maintained their disagreement as to whether there was a wetland on the site.

138. Breen (Exhibit A14) agrees with the general history of disturbance described by Woodward-Clyde in 1997, but he has also found that Krasnozem soils are reasonably resistant to erosion except in the case of stormwater (at p 2): In fact I would expect several current properties on this western boundary to be threatened if this discharge from existing upstream urban areas is allowed to continue uncontrolled. This environmental damage to the proposed development property (and the downstream receiving waters) is being caused by the existing poorly planned urban development.

139. He also observed that mosquitos have been advantaged by the removal of the riparian canopy which allows dense vegetation to grow in the drainage line (at p 2): This vegetation growth plus stock access has caused the flow to be fragmented. In a fragmented aquatic habitat mosquitos can breed in isolation from natural predators .

140. Breen conceded that in general the development appeared to have, as Mr Robson submitted, major elements of water sensitive urban design. The proposal also controlled the stormwater runoff from the existing developed area upstream, which he thought to have been extremely poorly managed stormwater-wise. He expressed the view that it was unlikely the proposed development would have any further significant impact on the downstream receiving waters. He acknowledged that it had the potential to improve the condition of the existing waterway on the land in question. The development would not impact or adversely affect the downstream ecosystem "and will result in a marked improvement to the existing degraded riparian zone on the subject property". Breen gave brief oral evidence and adhered to his report, despite the comments of Zerk, Downes, Zoete, and Alderson.

141. Brennan's expertise in edge effects made his evidence particularly important to the Fontainea. He was involved in the preparation of the DA and, as such, reviewed previous studies done for the NPWS. Overall, his conclusion was that the proposed development will increase the present level of protection afforded to the Fontainea, and not affect the hydrological regime in and around the reserve to such an extent that it will negatively affect the Fontainea (see Exhibits A10 and A11).

142. The Amber Drive reserve already suffers from serious weed invasion because there are abundant sources of weed species surrounding it. Brennan adhered to his view that the very small increase in risk of weed invasion was balanced by the long term benefits for weed reduction of the rainforest species plantings undertaken on the site. He concluded that 15m was an adequate buffer width and noted that NPWS had not commented on the proposal for the 15m buffer. Zoete's reports did not cause Brennan to change his view.

143. Zoete noted that the vegetation of the Amber Drive reserve consists of littoral rainforest, a community which is becoming increasingly rare due to ongoing land clearing and other disturbances related to developments. SEPP 26 imposes strict controls on any development carried out or undertaken on land affected by it. The reserve is currently not designated as SEPP 26 littoral rainforest as it was considered to be too small for the original listing of sites in 1999. There is a current proposal to include it under the SEPP.

144. Zoete recognises the potential for this development to impact deleteriously on the reserve which "is clearly of high conservation value because it supports rare vegetation and a range of threatened plant species" (Exhibit C18 p2). Zoete expresses the view (Exhibit C18 p4) that insufficient detail is provided in the DA with respect to potential impacts on the public reserve, such as weeds, fire, trampling and the dumping of rubbish. In respect of the 15m buffer he notes that it was recommended only in relation to the provision of a windbreak in a non-urban setting and not as a general purpose buffer to shield the public reserve from the proposed residential development. He expressed the view that 15m was inadequate. A buffer of 50m has been adopted for forestry operations in the vicinity of Fontainea, and the other two species to which he refers as present in the relevant reserve. He would prefer a buffer of up to 100m.

145. He classified the boggy area of the subject land as "wetland", and its plants as hydrophytic. He applied the definition in the North Coast REP and complained that the presence of the wetland within the site has not been taken into account in the DA. Connelly, in turn, complains that Zoete is the only biological expert who has defined part of the site as wetland. Neither the LES nor DUAP accept such a designation. Brennan also concluded that Zoete is wrong in this respect.

146. Zoete was also critical of the elimination of the berm from the DA, and of the replanting schedule and the actual plantings undertaken. Inappropriate vegetation may invade the littoral rainforest on the site and in the reserve. He called for a new landscaping plan to be prepared incorporating species native to the site or local area. It should be subject to the approval of the NPWS. In addition he feels the protection measures proposed in the DA are inadequate in regard to the plantings. Also he considers there is insufficient detail on the proposed creek rehabilitation works. Council is to be responsible for future maintenance and, therefore, complete details should be provided, particularly in respect to the standards for weed clearing and plantings.

147. Mr Hemmings submits that, as the direct drainage of runoff from some lots (e.g. 22 to 26), and from the road system, could constitute an environmental risk to rainforest vegetation in the 7(l) land, the precautionary principle dictates the refusal of the DA.

148. Brennan responded to Zoete's material, and Zoete replied with the repetition of his view that the proposed development would significantly impact upon the Fontainea as a result of increased risk of fire, increased risk of weeds, and increased risk of litter. Zoete gave evidence both before and after Brennan. He reiterated his concern regarding weeds, despite the conference result. Continuation of grazing and mowing was of less risk than urban development in this respect. A minimum 50m buffer was needed to protect the Fontainea.

149. Exhibit A11 includes 8 point tests in respect of the two noted species, other than the Fontainea, and Brennan concludes that the proposed development will not have a significant impact on either of them.

150. During her evidence, another objector, Michelle Chandler, produced a bird survey done on the reserve next to her house (see Exhibit C31). 58 species were observed in a 2-3 hour observation.

151. The court would be content to allow the appeal, on appropriate conditions, if the ecological matters were the only issues in serious dispute. I accept the adequacy of the proposed 15m buffer to protect the Fontainea in the adjoining reserve, and I am not satisfied that the boggy area on the subject land meets the REP's definition of wetland.

Traffic issues

152. The applicants relied on the evidence of Andrew Douglas (Exhibits A8, A9 and A13) and James Heddle (Exhibit A12) whereas the Council relied on Tim Brooker (Exhibit C16). The qualifications, expertise and experience of these experts is acknowledged. They were directed to confer and some matters were agreed, while others were not (Exhibit C36). All three gave oral evidence.

153. Brooker was the author of the relevant conditions in the new Exhibit C7. Exhibit C37 is a photograph of North Creek Road showing the relevant 280m stretch of it which he says should be widened. Exhibit C38 is a photograph of the uphill section of North Creek Road from the roundabout.

154. The proposed subdivision will be accessed from Blue Seas Parade which is a 9m wide bitumen carriageway with a rollover kerb and gutter on each side. The internal road will be an 11m wide continuation of Blue Seas Parade south of Survey Street and there will be a 9m minor access carriageway (Road B) going into the north-western sector of the proposal.

155. Blue Seas Parade and Survey Street both carry low volumes of traffic, and have a 50km/hr speed limit. Blue Seas Parade is a collector road west of Survey Street and a local access road east of Survey Street. Survey Street is a local access road connecting at both ends to Blue Seas Parade. It is a split-level road for part of its length and so also will be subdivision road A in the northern sector. Blue Seas Parade intersects with North Creek Road at a T-intersection and the speed limit on North Creek Road is 60km/hr.

156. The main arterial road in the vicinity is Coast Road. It intersects at a major roundabout with Ballina Street and North Creek Road. North Creek Road, south of Coast Road, carries approximately 3000 vehicles per day in the vicinity of Blue Seas Parade.

157. The experts agreed that North Creek Road should progressively be upgraded to 13m where there is residential development on both sides, and 11m where there is development on only one side. It should be widened in the vicinity of Blue Seas Parade intersection in accordance with the plan prepared by Ballina Council and a pedestrian refuge island would be required adjacent to any bus stop used by aged pedestrians where the traffic volume exceeds 300 vehicles per hour.

158. They also agreed that the RTA environmental capacity threshold of 2000 vehicles per day would not be exceeded as a result of the proposed development. The increased traffic represents a high proportional traffic increase from a low base. Adequate site distance is available along Blue Seas Parade. Cyclists can be safely integrated on the street and a pedestrian pass should be provided along Blue Seas Parade. Children who currently play in the street may tend to stop doing so.

159. The experts did not agree on the following matters:

· the quantum of the contribution towards the upgrading of North Creek Road. Brooker believes the applicant should fully fund an overtaking lane and carriageway widening adjacent to existing fronting development for a distance of 280m. Douglas believes that the proposed contribution (Exhibit C7 item 4.3) suggested by the Traffic Committee $30,500 is the appropriate outcome in respect of North Creek Road. · the widening of the existing carriageway of Blue Seas Parade from 9m to 11m. Brooker says such work is required to reduce conflict between parked and moving vehicles and Douglas believes that the widening will encourage high traffic speeds. · the need for any particular traffic management devices to reduce glare resulting from low sun in the late afternoon at certain times or the year. Brooker is of the opinion that clear separation of opposing traffic lanes is required to guide motorists, and Douglas is of the opinion the existing street furniture will appropriately guide them.

160. Douglas opined (Exhibit A8 p 9): The proposed development produces traffic conditions which are within the environmental capacity of a residential street. It is therefore my opinion that Blue Seas Parade can readily accommodate the increase in traffic resulting from the proposed development whilst maintaining the residential amenity of the street .

and (Exhibit A8 p 13): The proposed subdivision has only a minor impact on the operation of [the intersection of Blue Seas and North Creek] and is similar to that of other similar size subdivisions on the North Creek Road catchment.

Hence it is my opinion that the proposed development will not exceed capacity of the external road system including Blue Seas Parade and North Creek Road .

161. He went on to recommend that the footpath should be extended along the northern side of Blue Seas Parade to the development, but felt that no special cyclist provision is necessary, and he rejects Brooker's suggestion of an overtaking lane on North Creek Road on the first 300m south of the Coast Road. He noted Brooker's suggestion that the intersection of North Creek Road and Blue Seas Parade be upgraded to provide an 11m wide carriageway over a 200m long level urban section. Douglas suggest that that widening is required to meet Council's standards so that North Creek Road can provide access to all the existing and proposed development south of the Coast Road, and not just the Dossor proposal. The proposed contribution of $30,500 he considers reasonable.

162. Brooker noted that the existing Blue Seas Parade and Survey Street subdivision contains approximately 90 lots approved in 1970 and developed over the period 1972-1980. A further five residential lots were recently added in Sea Crest Place. He noted that an 8m-9m roadway does not provide for kerbside parking on both sides with two lanes of traffic flow.

163. The only factor relevant to the traffic noise issue is the increase in vehicle movements. Heddle commented that noise from motor vehicle movement is an existing part of the noise climate for neighbouring locations. He would expect an increase in the order of 4dBA in peak hour, well within the compliance levels of the EPA criteria. Hence, traffic noise amelioration measures are not required (Exhibit A12 p12): The re-alignment of the eastern leg of Survey Street further away from residential facades … is good design practice and will reduce noise from individual vehicle movements relative to the existing alignment .

164. All of the traffic issues regarding this development site can, in my opinion, be adequately dealt with by conditions. Were the development to be allowed I would have imposed the conditions sought by the Council, in view of my observations during the site inspection, and the expert evidence regarding the extent of the impacts. However, if a lesser development eventually takes place on the subject land, not all of those stringent, and costly, conditions may be necessary.

Open Space Issues

165. The rezoning concept proposal identified areas of the subject land for recreation and children's play purposes, but the "diversion" of a substantial area of that land for use as infiltration swales resulted in the proposal in the DA that the current area of parkland (lot 117 DP 242183) across Survey Street from the north-east corner of the subject land be expanded (into current road reserve) and embellished with play equipment, etc, funded by s 94 contributions.

166. The evidence suggests that Council has hitherto declined to develop and improve that park due to its steepness and issues of child safety.

167. The Council and the objectors consider the proposed swales totally unsuitable for recreational use by children, and the applicants acknowledge the risk of their attractiveness to "adventurous" children (Exhibit A2 fol 55).

The Objectors' expert

168. The objectors retained professional engineer Greg Alderson, who maintained his view that some issues were not examined adequately in the DA and its assessment (Exhibit C11 fol 161-154):

· the proposed development will alter the hydrology downstream from the site with adverse impact on flora and fauna. · deficiencies in the construction soil and water management measures. · water quality amelioration measures do not treat runoff from the proposed development and are unsuitable for site conditions and unlikely to achieve the design pollutant removal rates.

169. In his further report (Exhibit C22) he commented on the work done by Zerk in response to Downes and Brooker, concluding again that there is insufficient information to demonstrate that the subdivision should be approved.

170. Mr Robson tendered, in response to Alderson's evidence, a further report (Exhibit A16) from Neil Sutherland, of Gilbert and Sutherland, who had formerly given advice to the Council. The Council did not require Sutherland to be called for cross-examination and objected to his being called to supplement his evidence orally. Sutherland examined the Alderson letter of 27 March 2001 (Exhibit C22), the two ERM reports, and the Geolink February 2001 report. Sutherland concluded with the view: I do not resile from my conclusion that the combination of measures proposed will operate satisfactorily in the long term .

Conclusion

171. I agree with Mr Robson that "appropriate development" of the subject land is "invited, requested and encouraged by the Council and by the zoning", but I do not agree with him that the current proposal is appropriate, "responsive and responsible". (T69 L38-43).

172. I agree with Mr Hemmings and the objectors that:

(1) the current proposal represents an overdevelopment of the subject land, the visual impacts of which would be considerable (but in my view not determinative). (2) too much of the proposed development of the subject land has been left for definition at the design stage. (3) there should be a riparian buffer of up to 20m between any residential development and the watercourse on the subject land for both environmental protection, and watercourse maintenance purposes. (The EPA suggests 20m, but there is evidence that less may be adequate, perhaps 10m. The problem with the proposed development is that there is evidence that in some locations there is less than 10m, even zero). (4) the stormwater runoff from all residential and roadway development on the subject land should all be treated off-line before discharge into that watercourse and the sensitive environment downstream. (5) the substitution of infiltration swales for the originally proposed wetland/macrophytic pond treatment system causes more problems for the proposal than it solves, and has not been demonstrated to be suitable and/or effective for the subject land. (6) mere reinstatement, to the development, of the wetlands/ponds system originally proposed, by imposition of a condition, and without detailed design as part of the proposal, is not an acceptable response to the applicants' failure to convince the court that the swales proposal should be approved. (7) the site stability issues should be fully addressed before consent is given for any residential development of the subject land. (8) the likely flooding of any proposed lots on the subject land - and/or the increased likelihood or extent of flooding of the Newton land downstream in consequence of the development – is not acceptable. (9) open space suitable for children's recreation should be provided within the subject site, and the proposed swales, and the Survey Street playground proposal, are inadequate and unsafe responses to that requirement. (10) the subsurface drainage proposals which directly affect residential development on individual lots of the subject land should be fully designed and evaluated before consent is granted (par 106 above).

173. In all the circumstances the appeal against Council's refusal of the subject DA is dismissed.

174. The exhibits (other than Exhibits C2 and C4) may be returned.

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