Association for Better Living and Education Inc. v Wyong Shire Council

Association for Better Living and Education Inc. v Wyong Shire Council - [2015] NSWLEC 1483 - NSWLEC 2015 case summary — Zoe

The site will be used to run the Narconon program which is described in the following way: Beginning: Withdrawal education workshop and/or drug free withdrawal Following a doctor's medical check, the program initially sees the person come off drugs naturally through the provision of vitamins and minerals and without the requirement of substitution drugs or general medication. Step 1: The communication course - therapeutic training routines. Undertaken within one of the course rooms, Step 1 provides a practical communication skills course where a person will learn to improve their ability to confront people and situations in life; learn to listen and communicate well and generally obtain improved communication skills inherently fostering better self control. Step 2: The Narconon New Life Body Cleanse procedure Undertaken within the sauna and gym, Step 2 will further cleanse the body through exercise, good nutrition and seating in a dry, low-heat sauna with plenty of water and replacement minerals. The program does not require medical assistance as it does not require the administering of "stimulants' but rather provides the person the minerals and oils to replace nutrients that are sweated out in the sauna. Step 2 cleanses the body to allow the person to think clearly for the rest of the educational program. Participation requires a full physical exam and medical approval. Step 3: The Learning Improvement Course Undertaken within one of the course rooms, Step 3 enables the person to overcome barriers to study and improve comprehension towards being able to apply information learned in their life. Step 4: The Communication and Perception Course Undertaken within one of the course rooms and on the grounds in general, Step 4 enables the person to extrovert themself from past upsets through communication with their real world environment. This step involves a person literally going out and observing and recognising the environment through all perceptions, Step 5: The Ups and Downs Course This module is designed to help prevent relapse by training the individual to recognize the characteristics of two distinct types of personalities - the social personality and the antisocial personality - and the ways that relationships with each type affect individual success, survival, and drug use etc. Step 6: The Personal Values and Integrity Course Undertaken within one of the course rooms, Step 6 provides data and exercises where the person regains their own personal integrity through confronting past destructive actions and accepting responsibility for this. Step 7: The Narconon Changing Conditions in Life Course A relapse prevention and life skills process that incorporates ethical principles such as honesty, integrity, dependability and commitment to work, and helps participants work out the exact steps they need to take to improve areas of their lives such as healthy living, family relations, employment, etc. Step 8: The Narconon Way to Happiness Course Undertaken within one of the course rooms, Step 8 (the final step) is a study of moral consciousness providing guidance to the person enabling them to follow a personal path of future conduct that will lead to an improved life the participant, and for those around them. The fundamental basis of Narconon is to naturally aid people in working through life barriers such as drug/alcohol dependence through learning and support - as opposed to doing so via the medical/chemical realm. The program will involve approximately 12 staff, experienced in the delivery of the program to provide physical and mental support to participants through the process. The function of the community facility is to provide participants with life skills development and other related activities such as exercise, and the provision of vitamin supplements. No medication or medical treatment will be provided on-site. Nursing assistance will be provided to residents who are experiencing withdrawal symptoms; however, if medication or medical treatment is required, the resident will be relocated to an off-site clinic or hospital.

[4]

The relevant planning controls

The characterisation of the proposed development was subject to a separate question on permissibility (Association for Better Living and Education Inc. v Wyong Shire Council [2014] NSWLEC 1239) where Dixon C concluded that the proposed development "fits squarely within the definition of a "transitional group home"" under State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP). A transitional group home is defined as: transitional group home means a dwelling: (a) that is occupied by persons as single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.
The site is currently partly within Zone E3 - Environmental Management and partly within Zone RU1 -Primary production zone under Wyong Local Environmental Plan 2013 (LEP 2013). Clause 1.8A of LEP 2013 is a saving clause that requires the subject development application be determined as if LEP 2013 had not commenced as the development application was not finally determined before the coming into effect of LEP 2013. The local environmental plan in place prior to the coming into effect of LEP 2013 was Wyong Local Environmental Plan 1991 (LEP 1991) and as such, this plan applies to the development application.
The site is partly within the 1(a) Rural Zone and part in the 7(a) Conservation Zone under LEP 1991. Clause 10(3) states: (3) Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless, in the opinion of the Council, the proposed development is compatible with the objectives of the zone within which the development is proposed to be carried out.
Clause 23 provides requirements for flood prone land.

[5]

Social impact

The council contention states that the proposal does not adequately address the social impacts associated with the proposal pursuant to s. 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). Specifically, the proposed facility is to cater for a vulnerable group of people in a setting whereby existing buildings are in a relatively poor condition. The application relies on alternative solutions in order to comply with the Building Code of Australia (BCA) and those alternative solutions have not been adequately identified in the development application. In the absence of detail of those alternative solutions, consent should not be granted as the suitability of the site for the proposed development cannot be properly considered. The program is also not a medically assisted rehabilitation program, is located in a remote rural area that is not serviced by adequate public transport and will have an adverse impact on the rural amenity of the locality near the site.
The general area of social impact was addressed by Mr James Marshall, for the applicant and Ms Kerrie Forest, for the council. Their joint report addressed a number of separate matters but they agreed on the following matters:

drugs and alcohol are prevalent issues within our society and there is a need for drug and alcohol rehabilitation facilities.
the definition of "community need" relates to those people seeking help and is not a defined geographic area. Need is not limited to the local community or Wyong Shire community. It is a broad community need.
alcohol and other drug treatment services assist people to address their drug use as well as seek improvements to social and personal functioning. There are a range of treatment types available both medicated and non-medicated to suit individual requirements.
the proposal is for a drug and alcohol rehabilitation facility based on the Narconon program which adopts a non-medical and non-drug approach. Other Narconon facilities operate under a similar structure and stepped program.
it is not the role of the experts to investigate the effectiveness of the rehabilitation program or treatment method.

The council questions the Narconon program and also compares the proposed facility to another facility operated by the applicant at East Warburton in Victoria. As a starting point, it is necessary to understand the role of the Court in the appeal process, particularly as a number of submissions dealt with the non-medical treatment offered by the applicant. Importantly, it is not the role of the Court (or the council) to comment on its effectiveness or otherwise of the Narconon program. The proper planning approach is to determine the operational characteristics of the development and assess these operational characteristics against the relevant heads of consideration under s 79C(1) of the EPA Act to determine whether it is a suitable development for the site. To do otherwise would be an error of law.
The facilitiy operated by the applicant at East Warburton in Victoria was the subject of proceedings in the Victorian Civil and Administrative Tribunal (VCAT) where the decision of the council to refuse a permit was affirmed by VCAT. In this case, the applicant sought approval to conduct a similar facility to that proposed at Yarramolong although there are some differences between the two applications. Importantly, the East Warburton site is within the Low Density residential Zone and is to accommodate 80 participants, although the applicant would have accepted a limit to 40 participants. The assessment process adopts a similar approach to that required by the EPA Act and similar concerns are raised in both applications. Where relevant, the comments in the VCAT decision are referred to in the judgment.
Ultimately the question of social impact requires the Court to balance the undoubted benefits of providing a facility that may help people overcome a significant problem that unfortunately affects a percentage of the population against the impacts of such a development, including the suitability of the site for the proposed development. In this case, and for the reasons set out later in the judgment, I have found that the impacts of the proposed development outweigh the benefits and as such, the balancing of the impacts support the refusal of the application.

[6]

Sewage disposal

The council maintains, in its contentions, that consent should not be granted to the development application because the Court cannot be satisfied that adequate removal or disposal of sewage are available on the site. The proposed development does not make satisfactory provision for the on-site treatment and disposal of sewage.
Based on the report "Proposed on-Site Sewage Treatment Facilities & Effluent Re-Use Scheme" prepared by Pacific Environmental" (the Sewage Report) (Exhibit A, Tab 22) the proposal provides for a an activated sludge, fixed film, intermittent aerated, continuous extended aeration treatment plant (STP) and sub- surface irrigation of 8,316 sq m. A schematic of the STP is provided in the Sewage Report. The Sewage Report states that the site has sufficient buffer zones to meet the Industry standard requirements for setbacks to boundaries and water courses.
The Sewage Report concludes (at p15): The site soil investigation confirmed that surface irrigation of secondary treated effluent is a viable effluent disposal option for the proposed facility at Yarramalong. The surface irrigation system recommended is a sub-surface irrigation system, with 3.0 m dripper line spacing. The disposal will require a highly treated effluent in conjunction with an efficient distribution system. The site soils can be improved to accept the equivalent of secondary treated effluent after the addition of lime at a rate of 3kg/m3, this will assist with the low pH and the mildly dispersive nature of the soils. After this treatment the soils will be suitable for the acceptance of neutral or slightly elevated pH effluent.
The Sewage Report was prepared by Mr Steve Smith, an engineer, who also provided a joint report with Mr Scott Rathgen, a Health and Building Surveyor employed by the council. The joint report identified a number of inadequacies in the Sewage Report, including;

inadequate area for the sub-surface irrigation.
slope of the sub-surface irrigation area,
adequacy of storage for periods of excessive rain,
adequacy of buffer zones, and
adequacy of details of proposed system.

The area for the sub-surface irrigation was the subject of additional evidence at the hearing after Mr Smith accepted in the joint report that the area identified in the Sewage Report did not provide 8,320 sq m for the sub-surface irrigation area. The area identified in the Sewage Report was rectangular and identified an area of 8,320 sq m on a plan identified as N.T.S. (Not To Scale). It appeared to be only a diagrammatic representation of the sub-surface irrigation area.
During the hearing a further report from Mr Smith was produced (Exhibit O) based on his comments in the joint report to review the treated effluent sub-surface irrigation area. Mr Smith concluded, in his review of Exhibit O, that the available land above the 1 in 100 year flood level is only 4,800 sq m. This area excludes heavily wooded areas, land 1 m above the 1 in 100 year flood level and appropriate buffer zones. On this basis, Mr Smith reviewed his calculations that initially led him to the 8320 sq m of irrigation area. With adjustments to the application rate for the treated effluent, clay loam soils and allowing for a slope between 10% and 20%, Mr Smith concludes that 4,800 sq m of irrigation area is acceptable. The recalibration also results in no theoretical wet weather storage being required based on a review of the rainfall records of the Bureau of Meteorology Weather Station (Station Number 61220) from 1968 to 2015. Attached to Exhibit O is an aerial photograph with an area marked cross hatched to show the 4,800 m2 of irrigation area identified in the report. When questioned on the accuracy of the cross hatched area, Mr Smith maintained that it was accurate and that the area of 4,800 sq m was confirmed electronically.
Also during the hearing, and after Mr Smith and Mr Rathgen had been excused, the applicant, in response to the cross examination of Mr Smith on the cross hatched area in Exhibit O, tendered another aerial photograph that indicated the 1 in 100 year flood level, the Possible Maximum Flood (PMF), the cross hatched area in Exhibit O and two other vacant areas to the west and east of the existing buildings as being potential areas for sub-surface irrigation.. These areas were identified as being 2593 sq m (Exhibit O), 822 sq m and 569 sq m in size respectively.
On the important matter of the appropriate area for the sub soil irrigation area it is with some concern that I conclude that I cannot rely on the evidence of Mr Smith. Mr Smith prepared the documents before the Court. He was clearly experienced and qualified to do so but his documentation and evidence contained fundamental flaws. Mr Rathgen was not so experienced and qualified to address the intricacies of the waste disposal system proposed in this application although I make no criticism of him in this regard. I have no doubt his understanding of waste disposal systems is consistent with his duties with the council and clearly sufficient to question a number of aspects of the proposal. Mr Hemmings SC , for the council, also strongly cross-examined Mr Smith on his evidence and assumptions
I have taken the view that Mr Smith's evidence cannot be relied upon for a number of significant reasons. First, the Sewage Report was the applicant's response to the concerns raised by the council in relation to disposal of sewage from the site. The Sewage Report was to investigate (at p 6): ● The soil and land area requirements for the disposal of treated effluent from the proposed development at 36 Rose Hill Lane Yarramalong NSW, with a site occupancy of 13 staff, 21 students and seven visitors/day staff per day; ● Prepare a process design for the treatment of raw sewage, produced by the above numbers; ● Select a site layout of the sewerage facilities.
The land area requirements identified an area of 8320 sq m (at p13) for the secondary effluent disposal area. It would not be unreasonable to assume that this represented the applicant's firm position on this matter. Unfortunately, the area identified for the secondary effluent disposal area was done schematically and without specificity. Ultimately, the approximate area shown on the plan to the Sewage Report has an area of 2593 sq m (see par 30).
The veracity of the conclusion in the Sewage Report must be questioned where it states (at p7): …Sub-surface irrigation is sustainable, due to the buffer zones available to the proximity of public access areas and Wyong Creek. It is on this basis that the water balance calculations have been undertaken. The area proposed for the secondary treated effluent disposal is shown at Appendix A and occupies 8,316 m2. . The proximity of the area site access roads, domestic dwellings and the property boundaries brings into account the requirement for buffer irrigation distances, which allow 3 m to the up-gradient boundary to driveways. All the buffer zone requirements for buffer zones have been met.
I fail to see how the statement that "All the buffer zone requirements for buffer zones have been met" can be made when the secondary effluent disposal area has been identified only diagrammatically, is located in an area where there is only some 2593 sq m (not 8320 sq m) and provides no details of where buffer zones are located. To say that these requirements have been met simply cannot be made.
Second, it seems more than coincidental that after discovering that the identified secondary effluent disposal area could not accommodate an area of 8320 sq m, that the revision of the calculations identified an area of 4800 sq m, which at the time of his evidence, Mr Smith assumed had existed despite numerous suggestions from Mr Hemmings that the area was considerably less. Ultimately, the approximate area shown on the plan to the Sewage Report has an area of 2593 sq m based on Exhibit 6 and also the scale on the aerial photo that showed the cross hatched area on Exhibit O. The suggestion of Mr Hemmings to Mr Smith that the reduced area of the secondary effluent disposal area simply reduced the safety margin was not disputed by Mr Smith.
Third, and while Exhibit 6 identified a total area of 3980 sq m from the three areas, I do not accept that this offers any support for the applicant's case. The two areas (822 sq m and 569 sq m) have not been previously identified in the Sewage Report or any document prepared by Mr Smith. Apart from aerial photographs and some topographic features there is no evidence of gradient, soil type or the ability of these areas to perform the task of a secondary effluent disposal area. In any event, the combined area is still considerably less than 4800 sq m.
Fourth, and even though Mr Pickles SC, for the applicant, submitted that additional area was available between the 1 in 100 year flood line and the PMF line on Exhibit 6, this submission must also fail as this area has not been previously addressed by Mr Smith and must be excluded from any consideration because of the absence of detailed examination of the area.
Fifth, much of the discussion on Exhibit 6 was not subject to any expert evidence as both Mr Smith and Mr Rathgen had completed their evidence and no application to recall them was made by either party.
Sixth, and while Mr Pickles submitted that many of the shortcomings of the sewage disposal system identified by the council could be addressed in more detail as part of an application under s 68 of the Local Government Act 1993, I am not satisfied that this appropriate, in this case. There are clearly many instances where the detail may be provided at a later date with an application under s 68 but where there are constraints on providing the water and sewage facilities , it is appropriate that the detail be provided upfront particularly where it may be critical to determining whether an application should be approved. In this case, the amount of land above the 1 in 100 year flood line to the east and the steeper ground to the west is limited and given the proposed population and the use of the site, I have little trouble in concluding that full details of the sewage disposal should be available and considered as part the development application process rather than left to a later date with the s 68 application.
In my view, the inadequate information on sewage disposal would be sufficient reason to refuse the application.

[7]

Bush fire

The council maintains, in its contentions, that the site is identified as being subject to a high bush fire risk and consequently is not suitable for the proposed development.
Wyong Shire Council Bushfire Prone Land Map (the Map) identifies the areas which have been determined by Wyong Shire Council and the NSW Rural Fire Service to contain bushfire prone vegetation. The Map also records the extent to which the 100 m wide buffer zone to the Category 1 bushfire prone vegetation extends beyond the line of the vegetation which is deemed to be bushfire prone and also triggers the necessity for the proposed development to comply with the deemed-to-satisfy provisions of Planning for Bushfire Protection 2006. The Map also shows that the existing facilities to be used in this application are not impacted by bushfire prone vegetation or the 100 m wide buffer located within the western portion of the site.
The proposed development, in providing short term accommodation for non-related persons, is defined under Section 100B of the Rural Fires Act 1997 as a 'special fire protection purpose' development which requires the implementation of asset protection zones (APZ's) that achieve a radiant heat load of no greater than 10kW/m2 on the exterior of buildings. The RFS have issued a bushfire safety authority under s 100B.
Mr Graham Swain, the applicant's bush fire expert, states that participants will not generally need physical assistance to evacuate the buildings during an emergency. Furthermore, participants will undertake a program of rehabilitation over a period of 3-6 months, therefore becoming, after an initial period, long term residents as defined by the NSW Rural Fire Service in the determination of short term/long term occupancy of a 'special fire protection purpose' development.
In the opinion of Mr Swain, the occupants of the proposed development will become aware of their surroundings; will be managed 24 hours per day by competent staff and trained in the protocols of emergency management (evacuation training) for both building fires, bushfire emergencies and first response fire-fighting. However, in order to comply with the 6 week definition of 'long term residency', the applicant has accepted the need to maintain a protocol whereby new participants will be accommodated for a period of no less than 6 weeks Building 1, which is located close to the main entry to the site. Based on this approach, the short term 'special fire protection purpose' accommodation will be located more than 100 m from the bushfire prone vegetation and close to the evacuation point from the site. On completion of the minimum 6 week period, the participants can be relocated to other buildings on the site.
All of the existing buildings within the site are located more than 100 m from the defined bushfire prone vegetation located on the western portion of the site. This separation width meets the deemed-to-satisfy maximum separation distance required for non-core (residential) 'special fire protection purpose"'. This setback width complies with the requirement to maintain a maximum radiant heat loading of not more than 10kW/m2 on the exterior of the buildings.
Mr Swain provides a number of recommendations for the management of APZ's, the management of other land on the site, the preparation of a Fire Management Plan, the provision of non-combustible gutters, sign boards fire-fighting water supply provisions (including a new header tank west off Rose Hill Lane, a new reticulated fire-fighting water supply and fire hose reels in each building), the preparation of an Evacuation Plan and a specific location for new arrivals. Some cutting back of roadside vegetation is also required along Rose Hill Lane to increase the clearance for heavy vehicles.
On this basis, Mr Swain concludes that there is no bushfire safety reason why the development should not proceed.
Mr David Lemcke provided evidence for the council. He states that Rose Hill Lane, at 3.5 m in width, does not satisfy the requirement in Planning for Bushfire Protection 2006. Also inadequate information has been supplied in relation to:

the internal fire trail,
the static water supply tank
the location, type and configuration of the tanks for bushfire purposes, including whether the tanks will be located in the 100 m APZ,
ongoing maintenance of the APZ's given the steep slope, and
insufficient detail has been provided to demonstrate that the population can be safely evacuated to the Neighbourhood Safer Place (NSP) and there is adequate capacity for all the people on-site in a time of bush fire.

Mr Lemcke states that in relation to building protection, the report relies on Building 1 alone as the NSP to shelter in a bushfire emergency. Mr Lemcke states that in his opinion, Building 3 should also be upgraded to the standard of a NSP, as well as practical improvements to all buildings on site to improve defendability of the site overall and to minimise the need for staff/participants to undertake direct fire-fighting activity. He notes that no details of any alternative building site or other redundancy have been supplied if Building 1 is damaged or otherwise inaccessible, or in the event of a larger than normal total number of people onsite.
Mr Lemcke states that inadequate details have been provided about the specific upgrade standards to all buildings on the site in accordance with Planning for Bushfire Protection 2006 and Australian Standard AS 3959-2009 to demonstrate that they will be constructed to a reasonable standard to provide resistance to ember attack, minimising the need for direct fire-fighting with limited resources during a significant wild fire event for an extended period of time (perhaps 6-24 hours).
Overall, Mr Lemcke concludes that insufficient detail has been provided to properly assess the application particularly in relation to the relatively isolated location of the development and limited emergency services resources in the local area relative to the level of risk.
Both experts agree that at least one building within the group of buildings on the site should be a NSP. The designation of such a building has a particular meaning. The document Neighbourhood Safer Places - Places of Last Resort Guidelines - 2012/13 Bush Fire Season (the Guidelines) (Exhibit 3, p 8-886) explains what is an NSP and the process of establishing a NSP. Relevantly, the Guidelines provide: 4. What is a Neighbourhood Safer Place (NSP)? A NSP is a location where people facing an immediate threat to their personal safety or property can gather and seek shelter from the impact of a bush fire. The concept of NSP evolved out of the tragic Victorian bush fires in February 2009. It focuses on encouraging people living in or travelling through bush fire prone areas to have considered local options for shelter if the primary actions identified in their personal Bush Fire Survival Plan fail. The principal purpose of an NSP is to provide a higher level of protection to people from the effects of a bush fire, however they are not inherently safe places in a bush fire. The designated building / open space must be capable of withstanding the radiant heat produced from a bush fire without active fire fighter protection, and as such offer a place of last resort should the bush fire survival plan not be implemented or has failed. Having a backup plan is an important part of being prepared for a bush fire. A back plan should be implemented when: ● Your ability to leave the area safely has been compromised; or ● The fire event exceeds your capacity to safely protect your home Part of the backup plan could be a NSP. Access to the NSP should not require extended travel through fire affected areas. If there is not sufficient time or it is unsafe to travel to a NSP people should activate their identified Other Safer Locations such as neighbours home or a nearby cleared space. 5. Limitations Despite the best intentions, NSPs have a limited capacity and do not guarantee safety. People need to be aware of the following risks associated with NSPs as a Place of Last Resort: • ● Travelling to a NSP is inherently dangerous with traffic congestion, poor visibility, fire activity and accidents or fallen trees that may block the route there; ● There is no guarantee that you will not be mentally traumatised, injured or killed when travelling to or sheltering in a NSP; ● You are likely to experience extreme conditions including heat, high winds, fire noise, burning embers, radiant heat, smoke and ash sheltering at a NSP; ● There is no guarantee that emergency services will be present; ● There is no provision for pets; ● There will generally be limited parking. Large numbers of vehicles may further compromise what little protection the area affords; ● There will be limited capacity. No amenities (e.g. food, drink, toilets will not be provided) NSPs will not exist in all communities. In some instances there may not be a NSP in your local area or close to your home. In these circumstances people should ensure they have an identified other safer location 7. Identification and Assessment of NSP Under Part 3A of the Rural Fires Act 1997, The NSW Rural Fire Service is the responsible agency for coordinating the NSP program. This task involves working with the various Local Emergency Management Committees (LEMC) and community stakeholders for the identification, signage and management of NSP. NSPs are not to be confused with Fire Refuges, Relief Centres, Recovery Centres, AssemblyCentres, Evacuation Points or Informal Places of Shelter. Additionally, it is to be noted that each community faces different risks and has its own local needs. As a result, a broader range of venues and facilities for local communities should be considered when providing shelter options to residents. Areas of highest bush fire risk should attract attention as a priority, including 'interface areas'. These can be found in local Bush Fire Risk Management Plans. Bush Fire Prone Land Maps can also be utilised to identify areas capable of carrying bush fire. NSPs should be considered for areas that are likely to be subject to bush fire attack (direct flame impingement, radiant heat or ember attack). If areas are not mapped, consideration should be given to the areas with potential to be impacted by bush fire. Once designated, NSPs are to be included in the local Bush Fire Risk Management Plan and treated accordingly to ensure ongoing compliance with these guidelines. NSPs are existing structures and open spaces nominated with the aim of preserving life without the presence of emergency service personnel or firefighting equipment. As a result, there is a greater reliance on space around NSP (buildings and open space) and separation from bush fire hazards in the form of defendable space and asset protection zones, as outlined in the NSW RFS document Standards for Asset Protection Zones. Hence, the separation distances from bush fire hazards as stated in the acceptable solutions are significant.

the relatively isolated location of the development,
the need to rely on a NSP,
the limited availability and accessibility of emergency services resources in the local area,
a fire may occur for 6-24 hours,
the likely reliance on staff and their undefined training to protect the participants undertaking the course,
the need to "manage" participant accommodation to satisfy the matter of 'long term residency,'
the number of susceptible or vulnerable people likely to be on the site and their potential reaction to a bushfire emergency, and
the amount of bush fire protection work required and the ongoing maintenance of that work.

[8]

Existing buildings

Mr Rathglen provided evidence for the council and Mr Brian Maguire provided evidence for the applicant. Mr Rathglen states that there are numerous buildings on site that have been erected without the approval of council. Some of these buildings have been erected within the flood prone area of the site. The applicant had not provided certification from a suitable qualified Structural Engineer or a BCA compliance report on the compliance of the existing structures. The structures also remain unauthorised as no attempt has been made to legalise them via an application for a Building Certificate. There also has been no certification of unauthorised plumbing and drainage works. As they are unauthorised buildings Mr Rathglen states that consideration of the BCA compliance is a matter that should be resolved at DA stage at not consideration under cl 143 of the Environmental Planning and Assessment Regulations 2000 (the Regulations).
While there are building works proposed to address the use of the buildings; for example two portions of the roof of Building 3 are to be reconstructed to achieve compliance with the minimum ceiling height requirements of the BCA, the information is still inadequate. This work has only been detailed in a sectional plan and there are no elevations of the proposed building works. Balustrades are also detailed to be modified to comply with the BCA and these building works are not detailed on the plans.
Mr Rathglen states that some illegal buildings have been constructed on fill and there is no certification on the adequacy of this material to support the structures and the ability of the buildings to withstand the forces of flowing floodwaters. Should the buildings fail in a flood event it could result in potential life safety issues and present hazards if materials move with floodwaters.
Mr Maguire states that verifying structural adequacy is a function of cl 143 of the Regulations, i.e. a mandatory process to be undertaken for the issue of Construction Certificates relating to additions or alterations to existing buildings. Commonly, such structural engineering matters are deferred to the time when an application for a Construction Certificate is made rather than being the subject to consideration for a DA determination. Further, Mr Maguire is aware that the buildings have been assessed by a structural engineer (Northrop report), however he was aware that a report had been produced providing a detailed assessment on each building proposed to be used within the development. In this regard, it is reasonable to suggest that the structural condition of the buildings has been assessed, and that conditions of consent can be imposed requesting upgrades be implemented as per the recommendations from the structural engineer, given that compliance with the requirements of the BCA is readily achievable.
A BCA report has also been prepared on the proposed use of the existing structures, and has been accompanied by a letter from a fire safety engineer confirming that several of the fire and life safety items identified can be justified as meeting the Performance Requirements of the BCA. The matter of certification for plumbing works can be adequately addressed at the stage of an application for a Construction Certificate.
Mr Maguire defers comment on the matter of assessing any flood impacts on the buildings to other experts, however he states that there are no objections to conditions of consent being imposed, and where necessary, appropriate flood mitigation provisions included as a result of the recommendations from the experts.
In considering the evidence of Mr Rathglen and Mr Maguire, the fundamental difference in the evidence is when the information on the necessary upgrading of the buildings should be provided; at the DA stage (Rathglen) or at the Construction Certificate (Maguire). In my view, the approach of Mr Rathglen is the correct one, for the particular circumstances of this case although I accept that the approach of Mr Maguire could be acceptable in other circumstances. I have come to this conclusion for a number of reasons. First, the Preliminary Structural Assessment by Northrop (4 May 2015) identifies considerable rectification work to the buildings to be used. Each building is individually assessed however under the heading of "General Recommendations" rectification work is required to strengthen the floor joists, the provision of hold downs for the metal deck roofs, cutting back of timber posts that are in contact with the ground and removal of all existing roof framing and their replacement with timber trusses for pitched roofs as well as replacement all ridge beams. As I understand, these tasks are likely to require the replacement of the roof and floors in most buildings. On this basis, the retention of some buildings is questionable.
Second, the BCA Compliance Statement by Blackett Maguire+Goldsmith (March 2015) also identifies considerable rectification work to the buildings to be used. Each building is individually assessed and even putting aside matters such as the need for smoke alarm systems, adjustments to balustrade heights, portable extinguishers, emergency lighting, natural lighting and ventilation there are a number of significant breaches of the BCA. For example, to maintain the Class 1b classification, not more than 12 persons can be ordinarily reside in Building 1. Building 1 contains 8 beds but also provides a lounge, films room and large lounge area. Building 3 and 5 have problems with disabled access and inadequate ceiling heights.
Third, and while the Regulations require that verifying fire protection and structural adequacy is a function of cl 143 of the Regulations, the question that rhetorically needs to be asked is what plans does the assessment under cl 143 relate to, given the need for the substantial works identified in the Northrop report and the Blackett Maguire+Goldsmith report, such as the floor and roofing changes. Similarly, the Regulations require that verifying compliance with the development consent and the BCA is a function of cl 145 of the Regulations, but again the question that again rhetorically needs to be asked is what plans does the assessment under cl 145 relate to.
Section 79C of the Environmental Planning and Assessment Act 1979 provides that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application. Section 79C(1)(b) identifies "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality" Given the uncertainty of the changes required by the Northrop report and the Blackett Maguire+Goldsmith report, I am not satisfied that the question asked s 79C(1)(b) can be properly answered.
Fourth, I agree with the submission of Mr Hemmings where he suggests that the changes required by the Northrop report and the Blackett Maguire+Goldsmith report require a reassessment of the use of the Buildings 4, 7 and 8 that are below the 1 in 100 year flood level. Based on the Northrop report, Building 4 requires new floor rafters, new roof beams, new floor bearers and the existing roof structure replaced by new roof trusses. Building 5 requires new roof rafters and ridge beam, new load bearing walls, new bearers to the floor structure and new posts supporting the floor structure. Building 8 requires new ground floor bearers and ground floor joists to support the floor above.
I do not accept that simply because the buildings are existing and located below the 1% flood level that there is an automatic acceptance that they may be used for a different use than the use that they were originally used. In this case, it is more complicated in that no approval was granted for the construction of some buildings. It also does not follow, in my view, that if considerable modification of the buildings is required, the existence of a building below the 1% flood level, does not guarantee that the building can be replicated or replaced in its original position. Clearly, a merit assessment is required based on the relevant flood planning documents in place at the time, the extent of modification and a detailed flood study that was not provided as part of the application.

[10]

Impact on amenity

The proposed development attracted a considerable number of submissions opposing the development when it was advertised. A number of local residents also provided evidence to the Court. The residents supported the contentions raised by the council with particular reference to traffic, noise, visual impact, light spill and social impact.
First, it is necessary to deal with one particular objector to the development. Mr Schofield lives at Morriset and was a former employee of a Narconon facility at Lake Macquarie. His employment was ultimately terminated by the applicant. He provided evidence about his previous employment and observations he made at the facility. He was allowed to provide evidence under objection from the applicant. In cross-examination, Mr Schofield agreed that he is a campaigner against Narconon and the parent company, the Church of Scientology. Photographs of Mr Schofield protesting and blogs posted by Mr Schofield were provided as evidence (Exhibit L).
Mr Hemmings and Mr Pickles disagreed on the weight that should be given to his evidence; Mr Hemmings relying on his employment at a similar Narconon facility and his observations at that time and Mr Pickles relying on his status as a disgruntled ex-employee who still maintains a strong opposition to the Narconon program.
In considering the different positions, I have decided to not rely on the evidence of Mr Schofield. While his observations could have been very helpful in considering the matters raised by the council, his clear opposition to the Narconon program and the Church of Scientology make it difficult, or even impossible, to understand what is factual evidence and what is evidence that supports his fundamental opposition to the Narconon program and the Church of Scientology.
The closest residence adjoins the site to the north-west and is relatively close to the common boundary and also the buildings to be used for the facility. This property also uses Rose Hill Lane for access. The owner specifically objected to the proposed development because of potential security issues as their property is used for foster care, as well as other matters raised by the council and other objectors to the development.
In New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) Lloyd J made the following relevant comments on amenity: 60 In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate (Venus Enterprises at 69, Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, Mason P and Dunford AJA, 17 February 1997, unreported). Indeed, as Mr Officer QC submitted, it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds (Venus Enterprises per Cripps J at 70, see also Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 349 per Cowdroy J). Such antagonism would amount to a detrimental social impact (Dixon v Burwood Council [2002] NSWLEC 190 at [66] per Pain J). These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak at 237, with the caution that there is room for opinions to differ in weighing the same objective criteria. 61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use. 62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]). 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "... the demonstrable social effect of a particular ... use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48]).
The decision in New Century Developments makes the following points on amenity:

issues of taste and morality are not necessarily set aside in the consideration of amenity,
if there is such great offence to a large portion of the community then this may be a valid consideration,
there is room for opinions to differ in weighing the same objective criteria,
evidence on amenity impacts must be objectively assessed before a finding can be made of an adverse effect on the amenity of the area,
little, if any, weight can be given to amenity impacts if there is no objective, specific, concrete, observable likely consequence,
a fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant
a Court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development.

I am satisfied that a genuine concern is raised by the adjoining owners to the north-west regarding an unacceptable impact on the amenity and enjoyment of their property for two main reasons. First, the participants in the program are undergoing a difficult time in their lives and may not always think or behave in a rational way. It would be inappropriate to provide an environment that resembles a prison where they are physically confined to the site so the only other means of ensuring that there is no unacceptable impact on the amenity and enjoyment of adjoining properties is through physical separation. This cannot be achieved for the property to the north-west. In my view, this matter is not a fear or concern without rational or justified foundation.
Secondly, the applicant has provided a Plan of Management that, in part, should have requirements that seek to minimise any amenity issues for nearby and adjoining properties. A number of iterations of the Plan on Management have been produced over time, with the most recent being Exhibit T. I have little trouble in concluding that this document is inadequate. The Plan of Management describes the operation of the facility, the responsibility of the operator and staff to the participants, staffing levels, complaints and visitors but is unacceptably silent on a range of operational matters that could impact on the amenity of nearby properties. For example, and given the close proximity of the property to the north-west, noise from multiple radios and stereos or participants congregating in certain locations could impact on the amenity of adjoining properties although noise and other potential sources of amenity impact are not addressed in the Plan of Management. Similarly, lighting for security and safety purposes must be provided however the potential to minimise lighting was not only not addressed in the Plan of management but was not addressed in any detail in the application. I accept that these concerns are specific and concrete and reasonably identify likely effects of the proposed development.
Mr Nigel Mannock, the Executive Director of the applicant, for the Asia Pacific Area provided evidence on the third day (or second last day) of the hearing. A written statement was tendered at the same time. He responded to the concerns over potential noise impacts by stating that there are Staff Guidelines (Attach 3 to Exhibit U) that "limits CD players, radios and MP3 players noise to students rooms and between 7.30 and 11pm". He further states that "Narconon Yarramolong is intended to be a quiet and tranquil environment" and the student community is expected to follow strict social behavior within the property and this includes any potential noise". At the conclusion of the hearing, relevant matters to protect the amenity of adjoining and nearby properties, including restrictions on music and time limits on external lighting, were not included in the Plan of Management and as such were not enforceable, if consent were to be granted. Curiously, Mr Mannock indicated in his oral evidence that noise was addressed in the organisations Policy and Guideline Manual although a copy of this document was never tendered.

[11]

Flooding

The council maintains, in its contentions, that the site is within a "flood prone area" for the purposes of cl 23 and the development application provides insufficient information to adequately assess the effect of the proposed development on flooding and flood behavior given that the site is, in part, classified as both high hazard floodway and high hazard flood storage during a 1in 100 year flood event under the Lower Wyong River Floodplain Risk Management Plan.
Clause 23 of LEP 1991 states: 23 Flood prone land (1) Notwithstanding any other provision of this plan a person shall not erect a building or carry out a work on land which, in the opinion of the Council is, within a flood prone area, other than on land within Zone No 2 (a), 2 (b), 2 (c), 2 (d) or 2 (g), without the consent of the Council. (2) The Council may, as a condition of its consent to the carrying out of development referred to in subclause (1), require the floor of the building or work to be erected at a height sufficient, in the opinion of the Council, to prevent or reduce the incidence of flooding of that building or work or of adjoining land. (3) The Council shall take into account as a matter for consideration in determining whether to grant consent as referred to in this clause the effect of the proposed development on flooding.
Mr Hugh Williams, provided evidence for the applicant and Mr Kimura provided evidence for the council. Their joint report was of little help in addressing the flooding contention. In a very short joint report; Mr Kimura simply stated that there was insufficient information to make a decision while Mr Williams provided little more information but stated that Building 1 would be a better building for sheltering in times of flood (rather than Buildings 5 and 6 which are in the flood storage area) and that further clarification should be obtained on fencing and the potential impacts on the flood conveyance through the site.
To understand the flooding issue, it is necessary to review some of the historical information sought by the council and provided by the applicant. Prior to the council's consideration of the development application, the council sought additional information on the potential flood affectation (as well as a range of other matters) on 16 December 2013 (Exhibit A, p 235). In relation to flooding, the council sought:

a detailed survey depicting the existing floor levels of all buildings below 31m AHD on the site
details of a significant rock retaining wall and filled area adjacent to Wyong River including any approvals and comment from the Office of Water.
the existing bridge/access crossings on Wyong River do not appear to have approval and details of the construction of the river crossings are to be provided.
details of the drainage system for the development shall be provided, particularly details of the roof drainage from the existing buildings, landscape drainage systems and any drainage works that directly access Wyong River,
a number of the buildings are within 40m of Wyong River. As the river is a designated water course works associated with the buildings may fall into the category of a controlled activity.
a concept flood management plan is to be provided detailing the procedures and contingencies for dealing with flood events where access and reticulated services are rendered unusable by flood waters for a period of up to ten days.

The applicant responded on 14 March 2014 to the councils request for more information on flooding. The response (Exhibit A, p250-1) indicated that additional survey work was carried out and revealed that of the buildings which were nominally shown as being within the flood affected portion of the site, only one of these had a floor level below the planning flood level of 29.75m AHD. The remaining buildings are above the flood planning level, and appear to be within the "flood fringe" designated area. Based on a review of Council's Flood Prone Land Development Policy, structures/development within the flood fringe area; and within the 7(a) Conservation zone are able to be approved for various uses. The buildings shown as being within the flood affected portion of the site, only the "restaurant / dining" building has a floor level below 29.75m AHD and it is no longer proposed to use that building for that purpose but rather as a "course room" as opposed to any form of residential use. The remaining buildings which are within the flood affected portion of the site all have floor levels above the 1:100 year flood level, and accordingly, are able to be considered for the proposed use.
In response to the comments regarding a rock retaining wall and filled area adjacent to the river and to the west of the gymnasium, the response notes that these works represent a pre-existing condition and as such do not form part of the application. Similarly, the reference to the existing bridge/access crossing on Wyong River also do not form part of the application.
The development application was reported to council on 16 April 2014 (Exhibit 1, p 9-48 to p 9-51) and presumably responded to the applicant's submission as the council report post-dates the applicants response to the council's flooding concerns. The assessment of flooding impacts was addressed by councils Senior Development Engineer where it stated: Council does not have a regional or local based Flood Risk Management Plan for the area of the proposed development. In order to address the flooding constraint the applicant was requested to provide details regarding the impact of flooding on the site including the ability of the development to respond to times when access and reticulated services are cut by flood water. The applicant declined Council's request for a flood management plan citing the NSW Flood Development Manual not requiring site specific plans. Council's Senior Development Engineer has reviewed the proposal and provided the following comment in relation to flooding. The Flood Plain Development Manual indicates that "private or site specific flood plans written for individual developments and separate from the overall floodplain risk management plan or local flood plan are ineffectual and should not form the basis of development consent". This would be the case where a regional or local flood risk management plan exists. Where it does not exist, it is appropriate for the applicant to address flood risks, management and flood education at a site level. The NSW Flood Prone Land Policy Statement (section 1.1.1) indicates "a merits approach shall be adopted for all development decisions in the fioodplain to take into account social, economic and ecological factors as well as flooding considerations". Section3.6 of the Floodplain Development Manual indicates that where a development type is proposed that is outside the area management plan (none exists) a developer must have a detailed study undertaken by a suitably qualified consultant to determine the impact of the proposed development. Section 3.7 indicates fioodplain risk management measures should be undertaken to reduce the flood risk. Section N7 of the Floodplain Development Manual addresses Private Flood Plans and indicates the SES support for the idea of owners and occupiers of premises in flood risk areas having a plan to prepare and respond to flooding. As part of a merits based assessment for the development, Council will require a site specific flood risk assessment, for a full range of flood events, from a suitably qualified consultant, taking into account but not limited to, the following heads of consideration:- 1. Risk to Life 2. The social, economic and environmental cost 3. Warning and evacuation including Shelter in Place details. 4. Cumulative Effects of the Development 5. Flooding Impacts and Behaviour 6. Ecological Sustainable Development 7. Climate Change Other flood issues identified that do not appear to have been addressed are:- ● Buildings 7 and 8 appear to be below the 1% AEP Flood Level and the Flood Planning Level of 29.25m AHD and 29.75m AMD respectively. This has not been addressed for both buildings. ● Buildings 7 and 8 appear to be in floodway. Buildings in flood way would not be supported by Council. This has not been addressed for both buildings. ● Buildings 5 and 6 appear to be in flood storage. Surface levels have not been provided in this area and the impacts of the flooding have not been addressed. ● The Probable Maximum Flood (PMF) has not been addressed as part of the application for the proposed development. The Floodplain Development Manual is clear in the requirement to consider the full range of flood events up to and including the PMF. ● Buildings 4, 5,6,7,8 all appear to be significantly affected by the PMF when considering both floor level and escape routes. ● Buildings 7 and 8 do not appear to have a safe low hazard escape route in the 1% AEP flood event. They are identified as being in a high hazard flood area. This has not been addressed by the applicant. ● Plans have not provided ground levels around Buildings 5 and 6 and therefore it is unclear if a safe low hazard escape route is available for these buildings. ● Buildings 4, 5,6,7,8 will all require structural certification for expected flooding and flood impacts for a full range of flood events including the PMF. It is unclear if this can be achieved. ● Buildings 4, 7, 8 do not appear to have been approved in their current form. While a building certificate may be obtained for the building works, it does not resolve the issue of the impacts of the building location on Wyong River or possible impacts on the flooding regime in the area. There is concern that approval of this development would be considered an approval for the buildings on the property. The location of the buildings and effect of the buildings on the flooding impacts in the area may be significant. Therefore, unlike the statement from the applicant, the resolution of the approval of these buildings including their location needs to be addressed. ● Significant filling has been identified on the banks of Wyong River. It appears that this filling supports an unapproved septic system and part of building 8. This filling has the potential to affect the natural Wyong River flows, especially during flooding events in the area and may impact on flooding on other properties and indeed increase flood levels on other properties. This fill is an integral part of the development site. Again, any approval on the site may be construed as an approval for the filling. Removal of the filling is an option that would have implications for the existing building development on the site. Therefore the filling works that have been carried out on the site will need to be addressed as a part of this development application. ● The identified septic system within the filled area does not appear to have approval. This system is within Council's Water Catchment area and is also within close proximity of Wyong River. It appears that it may be affected by flood waters in certain flood events. The approval of this septic system, considering it location, needs to be addressed as part of this development consent. ● The existing bridges across Wyong River have the potential to effect flood flows and may become a hazard in flood events should they become debris. The structural integrity of the bridges also needs to be addressed. The applicant has indicated that the bridges will not be used as part of this development application. There is no surety that students, staff or maintenance workers will not access these bridges as part of general use of the rural property. Therefore the applicant will need to address flood impacts of the bridges and also obtain design and structural certification for their use. ● All unapproved works within 40m of Wyong River are controlled activities and need to be addressed as part of this development consent.

[12]

Potable water

The council maintains, in its contentions, that the proposed development includes works that are "water supply works" for the purposes of Chapter 3 Part 3 of the Water Management Act 2000. Those works are not lawful unless in accordance with a "water supply work approval" granted under ss 90(2) and 95(1) of the Water Management Act 2000. No water supply work approval has been granted for those works.
Mr Neil Petherbridge, an engineer for the applicant states that the collection of rainwater in a 420kL tank will not satisfy the total need for potable water for the proposed as some imported water will still be required given the reuse demand (at 4.6kL/day) will only be satisfied around 85% of the time. The options for water to top up the potable water supply are:

water tanker using local roads,
sinking of a bore on the site, and
pumping water from the river.

Mr Pickles, for the applicant, and Mr Hemmings, for the council disagreed on the last two options. Mr Hemmings submits that no license has been issued for the removal of water from the nearby river and that no approval exists for a bore. Mr Pickles submitted that no license was required and that there are no limits on the amount of water that can be removed from the Wyong River under the Water Management Act 2000
It is not necessary to deal with the dispute over the applicability of the Water Management Act 2000 for drawing water from the river or whether a bore can be sunk to provide the additional water needed for the population on the site as even if both of these alternatives are not possible or not viable, it is possible that water may be trucked onto the site to address the deficiency in potable water.
Of concern however is that the applicant has not determined which of the options was to be used at the time of the hearing. In some instances, this may not be necessarily needed at the development application stage however with access along Rose Hill Lane; likely additional traffic is a relevant consideration. Importantly, the ability to maintain adequate water storage for residents and for bush fire purposes, is a matter that requires greater consideration at the development application stage, rather than left to a later time.

[13]

Traffic

The council maintains, in its contentions, that Rose Hill Lane is a private road that the applicant has the right to access but questions whether improvements can be made without the approval of the owner of the land. The council also contends that the alignment and construction of Rose Hill Lane is inadequate for the proposed use.
Access to the site is via Yarramalong Road, Bunning Creek Road and Rose Hill Lane, a private road. Rose Hill Lane consists of a gravel track approximately 2.7 m wide near the entry gateway and widening to approximately 3.2 m within a Right-of-Way that is 10 m wide. The site is located approximately 370 m from Bunning Creek Road, much of that distance being along Rose Hill Lane.
Mr Bradley provided evidence for the applicant. He states that traffic generation associated with the proposed development is not comparable with any of the categories in the RTA Guide to Traffic Generating Developments. In his assessment, Mr Bradley, adopts that the development will employ up to 20 employees and up to 13 employees are likely to reside on-site. Up to 7 employees may commute between the site and areas east of the development and would be travelling in the opposite direction to the majority of traffic travelling along Yarramalong Road in the peak periods. Mr Bradley accepts that all participants at the development would not usually drive themselves to the site but would typically be transferred to and from the site, and accordingly will not have vehicles on the premises.
The estimated maximum traffic generation, assuming up to 7 employees may travel between other areas and the site with each using individual cars would be 7 inward trips in the morning peak and 7 outward trips in the afternoon peak. In reality, Mr Bradley states that many of the employees who commute on a daily basis would share vehicles and the above maximum generation rates are therefore a conservative estimate. There is likely to be occasional trips to the Yarramalong village or other areas such as the Wyong township or Tuggerah shopping area for various supplies.
Mr Bradley was cross examined on the absence of delivery vehicles associated with at least the provision of potable water, waste disposal, potentially pump-out sewage tankers, linen and food supplies in his assessment. He explained that he had been instructed that food and linen would be picked up and delivered by the staff who were rostered on that day and as such there would be no additional vehicles associated with the delivery of these items. Other potential truck movements were not taken into account as he had no specific instructions on the type and frequency of any other trucks. In terms of the potential number of visitors, Mr Bradley advised that he had not seen the proposed Plan of Management but had relied on his instructions that there would be 7 staff and a maximum of 5 visitors on Sundays, and visits would be by appointment only.
Mr Kimura provided evidence for the council. His principle position was that insufficient information had been provided on the total traffic generation for the proposed development, particularly the impact on Rose Hill Lane, to assess traffic impacts. Where information was provided there are inconsistencies, such as staff numbers and this affects the total generation for the development.
On this matter, I am not satisfied that the traffic assessment was satisfactory for a number of reasons. First, the approach of only assessing the impact of the vehicles used by the employees is an overly simplistic approach that may be acceptable in an urban environment with sealed roads and a land use that is more predictable in terms of traffic generation, for example a new residential flat building in an existing urban area.
Second, the fact that the proposed development is not comparable with any of the categories in the RTA Guide to Traffic Generating Developments is not a reason to adopt a simplistic traffic assessment but is a reason to adopt a more involved traffic assessment. The RTA Guide to Traffic Generating Developments (at cl 3.1) contemplates that the traffic generating potential can be assessed in many ways including "surveys of existing developments similar to the proposal … and comparisons can be drawn". It seems obvious to me that if there are no comparable uses with any of the categories in the RTA Guide to Traffic Generating Developments (or the council's development control plans) then another facility operated by the applicant could have been surveyed and adjustments made to reflect the activities on the site. No such surveys were conducted.
Third, the need for a proper assessment is heightened by the need to use Rose Hill Lane that is an unmade gravel track approximately 2.7 m wide near the entry gateway and widening to approximately 3.2 m. While the parties accepted that Rose Hill Lane is subject to other private interests and that the role of the Court in this case is to only determine the suitability of the access for this development, I cannot be certain of this. The bushfire evidence indicated that Rose Hill Lane would need to be upgraded to allow access for bush fighting vehicles. This involves an increase in the carriageway width to 4.5 m in places to allow for the passing of vehicles. Even though the ROW is 10 m wide, the provision of a carriageway to satisfy even the bush fire requirements needs to be carefully considered given the existing cut, fill and drainage required.
Fourth, and in the absence of any assessment of vehicles beyond staff vehicles, the traffic assessment must be rejected. Given that there is considerable rebuilding proposed as part of the development, it should have been incumbent on Mr Bradley to at least include the likely vehicles required for this work in his assessment. The provision of potable water was also not settled at the hearing as a number of options remained open; trucking in water, water from a bore or water from the river. As I understand, at least 15% of the necessary water for the development is needed to be found from other sources beyond harvesting rainwater from buildings on the site. If water needs to be trucked in, Mr Bradley's assessment makes no comment on this approach. In the absence of any evidence to suggest that water from a bore or water from the river is going to be used for the remaining 15% of potable water, then it would be important to consider the possibility of trucking in water and the effect that this would have on Rose Hill Lane. Notwithstanding much evidence on visitation from friends and relatives of those people undertaking treatment at the site, I remain confused about how this will operate and how many vehicles are likely to arrive on any Sunday.
I also remain skeptical that a facility that has 2 staff at night together with 21 full time participants undergoing treatment, that the provision of linen (as the proposal has no laundry) and the need to provide 3 meals per day for the participants could reasonably be expected to operate at an acceptable level by having existing staff pick up the linen and food for the facility, on their way to work. This approach may be correct but it seems inconsistent with what would normally be expected for a facility that accommodates at least 21 people on a full time basis and with no other option for access to food and clean linen.
Curiously, the following comments (Exhibit M, p15, 14 March 2014) are made in a letter from ADW Johnson and appear to contradict the evidence on the provision of potable water and laundry services and also Mr Bradleys evidence in relation to vehicles attending the site: Service vehicles proposed to be used in servicing the site will comprise light vehicles for such operations as the laundry service and for food deliveries, with the heavier type vehicles being limited to water deliveries as required. The lighter vehicles are anticipated to visit the site between two and three times a week, with the water deliveries being less frequent, and on an as needs basis. The size and type of vehicles servicing the site will therefore be no different to those which currently serve the site and the adjoining properties

[14]

Zone objectives

The site is partly within the 1(a) Rural Zone and part in the 7(a) Conservation Zone under LEP 1991. The 1(a) and 7(f) zoned areas generally reflect the cleared areas of the site as being within the 1(a) zone and the vegetated areas within the7(f) zone although both zones have some areas directly opposite near the zone boundary. Most of the proposed development is located in the 1(a) zone.
Clause 10(3) states: (3) Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless, in the opinion of the Council, the proposed development is compatible with the objectives of the zone within which the development is proposed to be carried out.
The zone objectives for the 1(a) zone are: (a) to protect, enhance and conserve agricultural land in a manner which sustains its efficient, sustainable and effective agricultural production potential, and (b) to facilitate development requiring a rural or isolated location or associated with agricultural pursuits, and rural industry, provided that it is unlikely to: (i) prejudice the present environmental quality of the land within this zone, or (ii) generate significant additional traffic, or create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road, or (iii) prejudice the intent of the objective specified in paragraph (a), or (iv) have an adverse impact on the region's water resources.
The zone objectives for the 7(a) zone are: (a) to restrict the type and scale of development which will be carried out on land possessing special aesthetic, ecological or conservation values to that compatible with such environments, and (b) to allow such development where: (i) it can be demonstrated that it can be carried out in a manner that minimises risks from natural hazards, functions efficiently, does not prejudice other economic development and does not detract from the scenic quality of the land referred to in the objective specified in paragraph (a), and (ii) it is unlikely to have a significant detrimental effect on the growth of native plant communities, the survival of native wildlife populations or the provision and quality of habitats for both indigenous and migratory species, and (iii) it is unlikely to have an adverse impact on the region's water resources.
Expert evidence for the council was provided by Mr Nathan Burr and for the applicant by Mr Adam Campton; both experts being town planners. They disagree in relation to whether or not the zone objectives are a relevant consideration. Mr Campton contends that the objectives of the zone are effectively turned off by the operation of the SEPP whereas Mr Burr considers that where is no conflict between the provisions of the SEPP and the provisions of cl 10(3) of the LEP 1991 and the compatibility of the development with the zone objectives is a relevant consideration.
There is disagreement in respect to the development being compatible with the objectives of the zone. Mr Campton states the information provided within the Statement of Environmental Effects demonstrates that the proposal is compatible with the objectives of the zone. With regard to objective (a) of the 1(a) Rural zone, Mr Campton states that the development is not inconsistent whereas Mr Burr considers that while the proposal involves a significant investment in a non-agricultural use, the development is not adverse to objective (a).
It is agreed that objective (b) of the 1(a) zone has a number of constituent parts and it is agreed that the proposal is not an agricultural pursuit or a rural industry. Firstly, there was disagreement as to whether the proposal is a development that requires a rural or isolated location. Mr Campton states that the development requires an isolated, rural location to facilitate to the rehabilitation of the attendees through to provision of a tranquil setting that is free from distractions, and one which removes the course participants from their usual environment and influences. Mr Burr states that there is nothing intrinsic to the use that requires it to be in either a rural or isolated location.
In respect of objective (b)(i) Mr Burr states that the proposal has the potential to prejudice the present environmental quality of land in the zone through impacts associated with lighting, noise generation and on-site waste management. It was agreed that the impacts associated with on-site sewerage management will be adequately considered by the relevant experts. It was also agreed that the impacts of the lighting could be quantified by a lighting plan specifying the type and location of lighting proposed. There was disagreement that the lighting plan could form a condition of consent as Mr Burr believes that the impact needs to be quantified in order to assess compatibility with the zone. Mr Campton states that information previously supplied to council on the matter of lighting should be sufficient to enable council to provide appropriate conditions of consent stipulating no light spill to adjoining properties.
For objective (b)(ii) it was agreed that the proposal is not and will not lead to a condition of ribbon development and it was agreed that compatibility with this objective will be borne out of the consideration of the traffic and access matters by the appropriate experts.
For objective (b)(iv), it was agreed that compatibility with this objective will be borne out of the consideration of the on-site sewerage management by the appropriate experts.
It was agreed that there are no known special ecological or conservation values associated with the 7(a) zoned portion of the site, and accordingly, the scenic quality of the land would be the relevant consideration. Mr Burr states that it is difficult to establish the likely impacts of the proposal as the full extent of works within the 7(a) zoned portion of the site are not known whereas Mr Campton states that the proposal shows what works are proposed within the 7(a) land, and the impacts are therefore able to be considered.
As a starting point, I agree with Mr Burr that where there is no inconsistency between the provisions of the SEPP and the provisions of LEP 1991, the provisions of LEP 1991 still apply. The provisions of the SEPP apply when there is an inconsistency with any provision of LEP 1991. Clause 8 of the SEPP states: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
In relation to objective (a) of the 1(a) zone, I accept that the proposed development is not inconsistent with this objective as the development does not seek to carry out any development that would be inconsistent with protecting, enhancing and conserving agricultural land in a manner which sustains its efficient, sustainable and effective agricultural production potential given that little additional work or activities are to undertaken beyond the existing buildings on the site.
Objective (b)(i) seeks to facilitate development requiring a rural or isolated location or associated with agricultural pursuits, and rural industry, provided that it is unlikely to prejudice the present environmental quality of the land within this zone. I accept that an isolated location is preferable for the development but not necessary however there is no suggestion that the development will prejudice the present environmental quality of the land, if considered in a broad context.
Objective (b)(ii) seeks to facilitate development requiring a rural or isolated location or associated with agricultural pursuits, and rural industry, provided that it is unlikely to generate significant additional traffic, or create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road. I accept that the proposed development is unlikely to create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road. Whether the proposed development generates significant additional traffic is unknown given that the traffic report was inadequate, but if a worst case scenario was adopted for vehicles travelling to and from the site, it would be difficult to accept that it would represent "significant additional traffic". The ability of Yarramalong Road or Bunning Creek Road to accommodate additional traffic was not a matter raised by the traffic experts and the width and alignment of Rose Hill Lane could allow some improvement of this access with better information on the likely traffic to the site but without this information, the development would be incompatible with this objective, even if improvements were found to be able to be carried out because of the private road status of Rose Hill Lane.
Objective (b) (ii) seeks to facilitate development requiring a rural or isolated location or associated with agricultural pursuits, and rural industry, provided that it is unlikely to have an adverse impact on the region's water resources.
Given the inadequate information provided at the hearing on sewage disposal, the development would be incompatible with this objective.
I agree that there are no known special ecological or conservation values associated with the 7(a) zoned portion of the site, and accordingly, the scenic quality of the land would be the relevant consideration. The likely impacts of the proposal within the 7(a) zoned portion of the site are limited and while concern was raised over the location, size and configuration of the proposed water tanks, I am satisfied that this is a matter that can be adequately addressed by way of a condition requiring landscaping to screen the tanks (see Exhibit N). I accept that there is no incompatibility with the 7(a) zone objectives.

In relation to these observations, the council's Senior Development Engineer makes the following comments: Council has a local policy for development within flood prone land (Policy F5). The overriding aim of Policy F5 is, ... the primary objective of reducing the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods using ecologically positive methods wherever possible. Council has via a new LEP, WLEP 2013, adopted formalised flooding considerations however, as mentioned above WLEP 2013 by virtue of savings provisions has limited effect in relation to the current proposal. Pursuant to S79C(e) of the Environmental Planning and Assessment Act (the Act) Council must consider the public interest in respect of a development application. While Policy F5 has not been created under the Act, it is still a relevant consideration in the public interest. Policy F5 contains a matrix which provides guidance as to what is considered to be acceptable development on flood prone land. The proposed change in use of the subject buildings would be considered to be new development in the terms of Policy F5 which is designated as 'prohibited' in all high hazard flood areas and low hazard flood way areas. In relation to the proposed development the change of use of a number of the buildings is regarded as prohibited by Policy F5 and the approval, of a change in the use of the buildings would be in contravention to the policy objectives and land use controls which would be adverse to the public interest. Council has not been provided with sufficient detail to assess how the development would operate sans the flood affected buildings and it is not an option to approve the development in part. On the face of it the ancillary works such as filling are beyond the scope of the current proposal for a change in use however, details have not been provided as to the likely impact of works within the floodplain of the existing buildings. In this regard Council is unable to assess whether removal or alteration of works within the floodplain would be fatal to the buildings or otherwise. In this regard the consideration of the implications of the flood affectation has not been completely addresses by the application and a proper assessment has not been undertaken.

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (5)