Ballina Shire Council v Palm Lake Works Pty Ltd

Land and Environment Court (NSW)|2020-04-17|Before: Preston CJ, Ms J

Solicitors: Parker Kissane Solicitors (Applicant) Mills Oakley Lawyers (Respondent) File Number(s): 2019/338764 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2019] NSWLEC 1479 Date of Decision: 4 October 2019 Before: Dickson C File Number(s): 2018/326045

Judgment

Palm Lake Works Pty Ltd ("Palm Lake") operates Palm Lake Resort, a seniors housing development, at North Creek Road, Ballina. Palm Lake wishes to expand the Resort by building 75 new serviced, self-care dwellings, roads, earthworks, stormwater management works, infrastructure works and environmental protection works, as well as removing vegetation. Ballina Shire Council ("the Council") refused Palm Lake's development application for the proposed development. Palm Lake appealed to the Court.

The likely impacts ground

The Commissioner, in exercising the functions of the consent authority in determining Palm Lake's development application for the proposed seniors housing development, was required by s 4.15(1)(b) of the EPA Act to take into consideration "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality."
The phrase "the likely impacts of that development" embraces not only site specific impacts, being impacts of the proposed development on the development site, but also off-site impacts. Off-site impacts can be caused not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have "a real and sufficient link" with the proposed development, such as where the impacts are caused by "some further undertaking that is 'inextricably involved' with the proposed development": Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535.
The critical factor is that there is a connection between the likely impact and the proposed development. This is because the category of relevant matters required to be considered is "the likely impacts of that development". As Basten JA held in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [44]: "The impact must be one flowing from the development the subject of the development application: the question is how remote a 'likely' impact must be, in order to disqualify it from the scope of the consideration."
Increasing remoteness in the chain of likely consequences will decrease the significance of an impact. This flows from both the concept of "impact" and the concept of "likely". As Basten JA held in Hoxton Park Residents Action Group Inc v Liverpool City Council at [46]: "Some such limitation must follow from the concept of 'impact': as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. 'Likely' in this context has the meaning of a 'real chance or possibility' rather than more probable than not…"
In the present case, there was a need to carry out works in the North Creek Road reserve to provide access to and service the proposed development. Road upgrade works were required to provide safe and efficient traffic movement to and from the proposed seniors housing development. Civil works were needed to be undertaken, including provision of a concrete shared footpath/cycleway along North Creek Road, to satisfy the access requirements of the Seniors SEPP. Water and sewer mains needed to be laid along North Creek Road to connect the proposed development to the existing water and sewer mains.
The development application, however, did not seek consent to carry out these road, civil and infrastructure works in the North Creek Road reserve. The carrying out of the road, civil and infrastructure works in the North Creek Road reserve would undoubtedly cause adverse impacts on the natural environment. North Creek Road adjoins land identified as coastal wetlands and proximity area for coastal wetlands under the Coastal Management SEPP and as priority oyster aquaculture areas under the Sustainable Aquaculture SEPP. Works within the road reserve had the potential to impact on Aboriginal shell midden material that might have been used in construction of the current road as well as on Aboriginal middens located adjacent to the road.
The question raised before the Commissioner was whether the likely impacts of carrying out the road, civil and infrastructure works in the North Creek Road reserve fell within the scope of the mandatory relevant consideration of "the likely impacts of that development", being the development the subject of the development application.
As a matter of fact, the Commissioner did not consider the likely impacts of any road, civil and infrastructure works that might be carried out in the North Creek Road reserve. The reasons for the Commissioner not considering the likely impacts of the road, civil and infrastructure works are largely set out in [295]-[301] of her reasons for judgment. It does not appear from these reasons that she found that the likely impacts of any road, civil and infrastructure works in the North Creek Road reserve were too remote in the chain of likely consequences from the development the subject of the development application.
To the contrary, the Commissioner found that the road, civil and infrastructure works in the North Creek Road reserve were inextricably involved in the proposed development. The Commissioner found that "road access from North Creek Road is a fundamental element of the development" (at [297]) and that "the nexus for the upgrade works to North Creek Road, agreed by the traffic consultants, is to provide safe and efficient traffic movement to and from the development" (at [298]).
Emphasising the inextricable link between the works in North Creek Road reserve and the proposed development, the Commissioner imposed a deferred commencement condition of consent requiring application for and grant of approval for "all works (civil, road and infrastructure) in the road reserve of North Creek Road which are to support, and are associated with, the development approved via DA2018/321" (the proposed development) (deferred commencement condition 1). The approved development thereby could not be carried out without the prior approval of the works in North Creek Road. The Commissioner found that "the deferred commencement consent requiring the approval of the works in North Creek Road prior to the consent operating is appropriate in the circumstances of the case" (at [301]).
Instead, the reasons the Commissioner gave for not considering the likely impacts of the road, civil and infrastructure works that needed to be undertaken in the North Creek Road reserve were fourfold.
First, the Commissioner believed that the road, civil and infrastructure works in the North Creek road reserve were both feasible and certain. The Commissioner found: "I am not persuaded that there is evidence that the road works arising from the development, or required to service it, would exceed the road reserve of North Creek Road. I am satisfied that the civil design plans prepared by the Applicant (Exhibit U) demonstrate with sufficient detail that the works are feasible. The documentation is adequate to demonstrate that the deferred commencement condition is appropriately certain." (at [296]).
It is not clear why these matters justified not considering the likely impacts of "all works (civil, road and infrastructure)" in the North Creek Road reserve. To the contrary, if the civil design plans demonstrate with sufficient detail that the works are feasible and, by reason of the deferred commencement condition, it is certain that the works will be carried out, the consideration of the likely impacts of these feasible and certain works would seem appropriate.
Secondly, the Commissioner noted that "no works to North Creek Road (beyond the intersection) form part of the 'proposed development' for which consent is sought. The Applicant does not propose works to upgrade North Creek Road" (at [297]). As noted earlier, the fact that works, which are likely to impact on the environment, are not the subject of the development application is not dispositive of the question of whether the likely impacts of the works need to be considered in the determination of the development application. The likely impacts of the works can be considered to be likely impacts of the development the subject of the development application where there is a real and sufficient connection between the works and their impacts and the proposed development. The Commissioner's second reason displays a misunderstanding of what can be the likely impacts of the proposed development that may need to be considered in the development application.
Thirdly, the Commissioner compared the provision of access from North Creek Road to the proposed development with the situation in two other cases, Hoxton Park Residents Action Group Inc v Liverpool City Council and Australian Coal Alliance Inc v Wyong Coal Pty Ltd [2019] NSWLEC 31.
In Hoxton Park Residents Action Group Inc v Liverpool City Council, the Land and Environment Court (Biscoe J) held that the likely impacts of the proposed development of a school included the likely impacts of construction of a bridge and access road to provide access to the school. Construction of the bridge and access road was not part of the development proposed in the development application, but a condition of consent granted for the school was that the bridge and access road be constructed and completed before the grant of an occupation certificate for the school. The Court of Appeal dismissed an appeal challenging the finding that the likely impacts of the proposed development of the school included the likely impacts of constructing the bridge and access road to the school.
In Australian Coal Alliance Inc v Wyong Coal Pty Ltd, the Land and Environment Court (Moore J) rejected the judicial review challenge to the grant of development consent to a coal mine on the ground that the consent authority had failed to consider the likely impacts of a pipeline providing a compensatory water supply to the mine. Moore J found first that there was "no crystallised, immediate necessity for a pipeline", secondly, "there is no defined pipeline route", and thirdly, "there is no inevitability that a pipeline to provide a compensatory water supply would be required unless the mine proposed to extend its mining life into and beyond Longwall 6N." (at [123]).
The Commissioner sought to distinguish the provision of access to the proposed development in the present case with the provision of access to the school in Hoxton Park Residents Action Group Inc v Liverpool City Council: "Unlike the facts in Hoxton Park Residents Action Group, the provision of access to the proposed development is not solely provided by North Creek Road, nor predicated on the completion of those works as was the case in Hoxton Park Residents Action Group where a new bridge was required to provide access." (at [299]).
In contrast, the Commissioner sought to align the provision of access to the proposed development in the present case with the factual finding of Moore J in [123] of Australian Coal Alliance Inc v Wyong Coal Pty Ltd (at [300]).
Both attempts, to distinguish one decision on the facts and align to another decision on the facts, involved error. The task for the Commissioner was to determine whether the likely impacts of the road, civil and infrastructure works in the North Creek Road reserve, that would be required by the deferred commencement condition to be approved prior to the consent for the proposed development operating, were likely impacts of the proposed development. That factual question was not to be answered by reference to the factual findings made in the two decisions cited. Answering the factual question required an evaluative judgment having regard to the degree of connection between the works and their impacts and the proposed development.
The Commissioner's description of the connection between the works and the proposed development (in [299]) is inconsistent with her earlier findings that provision of road access to the development from North Creek Road "is a fundamental element of the development" (at [297]) and needed "to provide safe and efficient traffic movement to and from the development" (at [298]). The Commissioner's statement in [299] that provision of access to the proposed development by construction of the works in North Creek Road is not "predicated on the completion of those works" is also inconsistent with the Commissioner imposing a deferred commencement condition "requiring the approval of the works in North Creek Road" (at [301] and deferred commencement condition 1).
The Council submitted that the Commissioner erred in law by failing to consider the likely impacts of the works in North Creek Road, which works the Commissioner had found were a fundamental element of the development. Having regard to the Commissioner's findings at [297] and [298] and the imposition of the deferred commencement condition requiring approval of the works prior to the consent for the development operating, the Council submitted that it was not open to the Commissioner to distinguish the decision in Hoxton Park Residents Action Group Inc v Liverpool City Council in the way in which she did. The other reasons the Commissioner gave for not considering the likely impacts of the works in North Creek Road reveal misdirection and that the Commissioner asked herself the wrong question.
Palm Lake submitted that the Commissioner turned her mind to the question of whether the likely impacts of the road, civil and infrastructure works should be considered to be likely impacts of the proposed development but held that they were too remote. This involved an evaluative judgment open to the Commissioner.
Palm Lake submitted that, reading the whole of the Commissioner's discussion at [295]-[301], as well as her summary of the parties' submissions at [276]-[288], the Commissioner should be understood as finding the likely impacts of the works in North Creek Road would be too remote to be taken into consideration in determining the development application for the proposed development. Palm Lake submitted that this is what the Commissioner was intending to say when she distinguished the decision in Hoxton Park Residents Action Group Inc v Liverpool City Council and endorsed the factual finding in Australian Coal Alliance Inc v Wyong Coal Pty Ltd.
Palm Lake submitted that it was appropriate for the Commissioner to determine that the works to North Creek Road could be the subject of later application, assessment and approval by the deferred commencement condition.
I find that the Commissioner did err on questions of law in her consideration of the likely impacts of the proposed development. The Commissioner was required to make an evaluative judgment as to whether the likely impacts of the road, civil and infrastructure works required to be undertaken in the North Creek Road reserve were likely impacts of the proposed development, and if so, to take those impacts into consideration in determining the development application for the proposed development. The Commissioner did not take those impacts into consideration, not because she formed the opinion that the impacts were too remote, but for other reasons that involved error.
The Commissioner did not consider the impacts of the road, civil and infrastructure works in the North Creek Road reserve were too remote from the proposed development. To the contrary, the Commissioner found that the road access from the North Creek Road to the proposed development was "a fundamental element of the development", that was necessary "to provide safe and efficient traffic movement to and from the development". The Commissioner considered the nexus of the works to the proposed development was so inextricable that she imposed a deferred commencement condition of consent requiring the approval of the works prior to the consent operating and hence the proposed development being able to be carried out. The Commissioner must therefore be taken to have determined that the works in North Creek Road were inextricably involved with the proposed development and that the likely impacts of the work had a real and sufficient connection with the proposed development.
Why then did the Commissioner not take the likely impacts of the works on North Creek Road into consideration in determining the development application for the proposed development? The four reasons given by the Commissioner for not considering the likely impacts of the works in North Creek Road each reveal error.
The first reason (in [296]), that the works are feasible and certain, and will be constructed within the road reserve, is not a reason justifying not considering the likely impact of the works. If anything, it is a reason justifying consideration of the likely impacts of the works. If the works were not to be feasible or certain, or were to exceed the road reserve, there might be some difficultly in identifying what were and where would be the works involved and hence what would be their likely impact, but the Commissioner found to the contrary. The civil design plans prepared by Palm Lake demonstrated with sufficient detail that the works were feasible and that they would be constructed within the road reserve, a defined route. The carrying out of the works to provide access to and service the proposed development was also certain because the deferred commencement condition, imposed by the Commissioner, would ensure that the proposed development could not be carried out unless and until approval for the works had been obtained.
The Commissioner's second reason (in [297]), that the works in North Creek Road do not form part of the development for which consent is sought, is not a reason for not considering the likely impacts of the works. As earlier noted, the likely impacts of a proposed development, the subject of a development application, can include likely impacts of activities other than the proposed development. That should have been clear to the Commissioner from the Court of Appeal's decision in Hoxton Park Residents Action Group Inc v Liverpool City Council where the bridge and road access to the school did not form part of the development application for the school. Yet, the likely impacts of the bridge and road access were held to be likely impacts of the school the subject of the development application. By her second reason, therefore, the Commissioner misdirected herself.
The Commissioner's third reason (at [299] and [300]) involved attempting to distinguish the present case from the facts of Hoxton Park Residents Action Group Inc v Liverpool City Council and aligning the present case with the facts of Australian Coal Alliance Inc v Wyong Coal Pty Ltd. Neither attempt succeeded for the reasons I have given earlier. Inconsistently with what the Commissioner held in [299] and [300], the Commissioner had earlier found that provision of access to the proposed development from North Creek Road was a fundamental element of the proposed development, necessary to provide safe and efficient traffic movement to and from the development. The deferred commencement condition of consent imposed by the Commissioner made carrying out of the proposed development "predicated" on the prior approval of "all works (civil, road and infrastructure) in the road reserve of North Creek Road". These factual finding of the Commissioner aligned the present case with the facts of Hoxton Park Residents Action Group Inc v Liverpool City Council and distinguished the present case from the facts of Australian Coal Alliance Inc v Wyong Coal Pty Ltd, the converse of what the Commissioner held in [299] and [300].
The Commissioner's fourth reason that "the deferred commencement consent requiring the approval of the works in North Creek Road prior to the consent operating is appropriate in the circumstances of the case" (in [301]) reveals misdirection. The deferred commencement condition required "complete environmental assessment of all works proposed in the North Creek Road reserve…to be prepared and submitted with the application" for approval of the works in North Creek Road. The Commissioner appears to have thought that requiring, by the deferred commencement condition of consent, such later environmental assessment of the works in North Creek Road, justified her not taking into consideration the likely impacts of the works in determining to grant consent to the development application. This involved misdirection.
The power in s 4.16(3) of the EPA Act to grant consent to a development application subject to a deferred commencement condition does not relieve a consent authority from the obligation to take into consideration all matters of relevance to the development the subject of the development application under s 4.15(1) of the EPA Act: Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276; Weal v Bathurst City Council (2000) 111 LGERA 181 at 201 [93]-[94]. As Giles JA held in the latter case: "[Section 4.16(3)] enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent, but its consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters with that understanding. The consideration would be given effect in part by a condition of the deferred commencement consent, if that could be done reasonably and consistently with proper consideration." (at [94]).
In the present case, the Commissioner did not have an understanding of the likely impacts of the road, civil and infrastructure works in the North Creek Road reserve or undertake an evaluation of the relevant matter of the likely impacts of the proposed development with that understanding. The Commissioner instead deferred for later consideration "a complete environmental assessment of all works proposed in the North Creek Road" by granting consent subject to a deferred commencement condition under s 4.16(3) of the EPA Act. The Commissioner thereby failed to take into consideration a mandatory relevant matter.
I uphold ground 1, the likely impacts ground.

The provision of water and sewage services ground

Appeal ground 2 overlaps with ground 1 in that the Council contended that the Commissioner failed to take into consideration in determining the development application the likely impacts of extending the water and sewer mains along North Creek Road to service the proposed development.
However, ground 2 goes further than ground 1 by focussing on a pre-condition to the grant of consent to the development application. Clause 28(1) of the Seniors SEPP: "(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage."
Clause 28(1) establishes a condition precedent to the grant of consent by a consent authority. The condition precedent is the formation by the consent authority of a positive opinion of satisfaction, to be formed on the written evidence before the consent authority at the time of its determination of the development application, that the water and sewer services referred to in the clause will be provided: Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297 at [38].
The Commissioner said that she was satisfied that cl 28(1) of the Seniors SEPP was met (at [26]). But the only reason the Commissioner gave for being satisfied was that the deferred commencement condition that she would impose on the consent required application for and approval of: "(i) sewer mains required to service the development approved via DA 2018/321, to be located in North Creek Road, and their positioning outside of the future pavement of North Creek Road" prior to the development consent operating (at [25]).
The Council submitted that the Commissioner impermissibly deferred consideration of the relevant matter of the provision of water and sewer services to the proposed development by granting consent subject to the deferred commencement condition. The Council submitted that, whilst cl 28(1) does not require arrangements or approvals for the provision of water and sewer services to be in place at the time of the grant of the consent, the consent authority must be satisfied that the arrangements or approvals "will" be provided and that there is some certainty that arrangements will be made or approvals will be granted.
As the Council submitted on ground 1, there had been no environmental assessment of the provision of water and sewer services in North Creek Road. The deferred commencement condition made it plain that the connection to the existing water and sewer mains was contingent on an application for the works being made, assessed and approved.
In these circumstances, the Council submitted that the Commissioner did not form, and could not have, formed the requisite opinion of satisfaction under cl 28(1) of the Seniors SEPP, which was a precondition to the Commissioner having power to grant development consent.
Palm Lake submitted that the Commissioner did form the requisite opinion of satisfaction under cl 28(1) of the Seniors SEPP. She expressly said in [26] that she was satisfied that cl 28(1) had been met.
Palm Lake submitted that the imposition of the deferred commencement condition enabled the Commissioner to be satisfied that the proposed seniors housing "will" be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage. Clause 28(1) does not require written evidence that arrangements have been made to provide water and sewer services, only that such water and sewer services will be provided in the future: Crighton Properties Pty Ltd v Kiama Municipal Council in [47] and [48].
The deferred commencement condition requires application for and grant of approval of the water and sewer services prior to the consent operating and the seniors housing development being carried out. If approval is not granted, the seniors housing development will not be able to be carried out. But if approval is granted, the seniors housing development will be connected to the water and sewer services so approved.
I find that the Commissioner did fail to comply with cl 28(1) of the Seniors SEPP in granting consent to the development application. The Commissioner misdirected herself in forming an opinion of satisfaction that the proposed seniors housing would be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage. The Commissioner's opinion of satisfaction was dependent on application being made and approval being granted to carry out the works to extend the water and sewer mains in order to service the seniors housing development. The Commissioner sought to achieve this result by granting consent subject to the deferred commencement condition. Yet, this grant of deferred commencement consent did not enable the Commissioner to be satisfied under cl 28(1) of the Seniors SEPP. The reasons are twofold.
First, approval for the required water and sewer services might not be granted by the Council. In the present case, the Council had expressed serious concerns about the adverse environmental impacts of carrying out the works to extend the water and sewer mains in North Creek Road to service the development. The Commissioner was therefore on notice that there was a likelihood that the Council might not approve the works by reason of these adverse environmental impacts.
If the Council did not approve the works, the deferred commencement condition would not be satisfied and the consent would not operate. Whilst it is true, as Palm Lake submitted, that this would mean that the seniors housing development could not be carried out, this does not mean that cl 28(1) is satisfied. The works required by cl 28(1) - connection to a reticulated water system and adequate facilities for the removal or disposal of sewage - will not be provided, as no approval has been granted for the works. Put another way, if the works are not approved, the seniors housing development to which consent has been granted (although not being able to be commenced because of non-satisfaction of the deferred commencement condition) "will" not be connected to a reticulated water system or have adequate facilities for the removal or disposal of sewage.
In these circumstances, the Commissioner could not be satisfied that, by imposing the deferred commencement condition, the seniors housing development "will" be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage. Those outcomes might occur, if approval is granted for the works, but it cannot be concluded that those outcomes "will" occur.
Secondly, by cl 28(1) of the Seniors SEPP, the Commissioner's satisfaction that the seniors housing development will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage needed to be based on "written evidence" available to the Commissioner before she exercised the power to grant consent to the development application. There was no such written evidence. The stated basis for the Commissioner's opinion of satisfaction was the deferred commencement condition that she imposed on the consent that she granted. That condition of consent came into existence upon, and not before, the grant of consent to the development application. Yet, cl 28(1) required the Commissioner to be satisfied, by written evidence, that the seniors housing development will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage before granting consent to the development application for that development.
In these circumstances, the Commissioner was precluded from granting consent, including granting deferred commencement consent, to the development application for the seniors housing development.
I uphold ground 2, the provision of water and sewage services ground.

The characterisation of the access way ground

The proposed development, and the works in North Creek Road, are located on land zoned RU2 Rural Landscape under Ballina LEP. Seniors housing is an innominate prohibited development in the RU2 Zone. The site compatibility certificate authorised seniors housing development within the area of land delineated in the site compatibility certificate map. The access way from the seniors housing development to North Creek Road, and North Creek Road itself, fell outside this area delineated by the site compatibility certificate. Accordingly, if the access way to North Creek Road was to be categorised as being for the purpose of seniors housing, as the Council had contended before the Commissioner, the access way would be prohibited development. To be permissible with consent, the access way needed to be categorised as being for the purpose of "road", as Palm Lake had contended before the Commissioner, as "road" was a nominate permissible development in the RU2 Zone.
The Commissioner characterised the access way to North Creek Road as being for the permissible use of "road". The Commissioner referred (at [76]) to the definition of "road" in Ballina LEP that "road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road." The Commissioner noted (at [77]) that the access way was not proposed to be dedicated to the Council as a public road. Instead, the access way would be a private road. The Dictionary to the Roads Act 1993 defines a "private road" as any road that is not a public road. The Commissioner noted that the Council had accepted that "any type of access way on private land could be categorised as a private road" (at [77]).
The Commissioner concluded: "On the basis of the case law, and in particular the correlation of the facts in Argyropolous with the current proceedings, I accept the submissions of Mr Hemmings, and his reasoning at [70] - [72], that the access way is appropriately characterised as a road and is permissible." (at [79]).
The submissions that the Commissioner referred to, summarised at [70]-[72] of her reasons, were that the access way should be characterised as being for the use of "road", not seniors housing, in the same way that the access handle of a battle axe block in Argyropolous v Canterbury Municipal Council (1988) 66 LGERA 203 at 207 was characterised as being a use for road rather than for the light industrial use of the head of the battle axe block to which the handle provided access.
The Council submitted that the Commissioner erred in two ways. First, the Commissioner failed to ask herself whether the use of the access way was a use "for the purpose" of a road or seniors housing, but instead only looked at whether the access way fell within the definition of "road" in Ballina LEP. Secondly, the Council submitted the Commissioner focused only on whether the access way could be characterised as being for the permissible purpose of road and, if so, the fact that the use could also fall within the prohibited purpose of seniors housing was legally irrelevant.
The Council submitted that the Commissioner's reliance on Argyropolous v Canterbury Municipal Council, by reference only to analogous facts, compounded the legal error as the Commissioner undertook the exercise of characterisation without reference to purpose: see Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 25 at [59], [60].
Palm Lake submitted that the Commissioner's reasons do not disclose any error. The Commissioner correctly first considered whether the access way could be characterised for the nominate permissible purpose of "road". If so, the access way could not be prohibited, even if it could also be characterised as being for the innominate prohibited purpose of seniors housing. This flowed from the structure of the land use table for the RU2 Zone. Prohibited development includes "any other development not specified in item 2 or 3". One of the developments specified in item 3 as being permissible with consent is "roads". Hence, if the access way can be characterised as the specified development of "roads", it cannot fall within the category of prohibited development of "any other development not specified in item 2 or 3: see the analysis in Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [37], [49]-[52], [55], [63]-[66].
Palm Lake submitted that this was the approach the Commissioner adopted, correctly so, as evidenced by her discussion at [74]-[75] of the decision in Botany Bay City Council v Pet Carriers International Pty Ltd.
Having correctly understood the characterisation task she was required to undertake, the Commissioner evaluated whether the access way could be characterised as being the nominate permissible use of road. No error is revealed in the Commissioner' analysis and conclusion that the access way could be characterised as a road. The facts of the access way allowing access to and from the seniors housing development in the present case were analogous to the facts of the access handle allowing access to and from the light industrial use in Argyropolous v Canterbury Municipal Council. Palm Lake submitted that the Commissioner was correct to so find.
I find that the Council has not established that the Commissioner erred in characterising the access way as being a road in either of the two ways alleged. The Commissioner's approach to determine first whether the access way could be characterised as being for the nominate permissible development of road (a development specified in item 3 of the land use table for the RU2 Zone) was correct. If the access way could be characterised as being for the nominate permissible development of road, it would be permissible, irrespective of whether it could also be characterised as being a seniors housing development.
On a reading of the whole of the Commissioner's reasons on the characterisation issue, the Commissioner did not fail to consider the purpose of the use of the access way. Whilst the Commissioner does not in the paragraphs where she finds the access way falls within the definition of "road" expressly refer to the purpose of the use of the access way, the Commissioner had earlier recognised the need to consider the purpose of the particular use when she set out the task of characterisation of the access way (in [74] and [75]), adopted the submissions of Palm Lake (set out in [70]-[72]) concerning the proper characterisation of the access way, and referred to prior decisions, including Botany Bay City Council v Pet Carriers International Pty Ltd, which focused on characterising the purpose of a particular use (at [75]).
I reject ground 5, the characterisation of the access way ground.

The impact on aquaculture ground

The proposed development is located on land near a priority oyster aquaculture area (as defined in s 4 of the Sustainable Aquaculture SEPP). As a consequence, the Sustainable Aquaculture SEPP required the Commissioner to consider the potential impact of the development on the priority oyster aquaculture area in two ways.
First, cl 15B requires: "(1) Before determining a development application for any development, a consent authority: (a) must consider whether, because of its nature and location, the development may have an adverse effect on oyster aquaculture development or a priority oyster aquaculture area, and (b) if it suspects that the development may have that effect, must give notice of the application to the Director-General of the Department of Primary Industries. (2) In determining a development application for any development, a consent authority must consider any comments received from the Director-General of the Department of Primary Industries pursuant to subclause (1), including, in particular, such comments as identify: (a) any adverse effect that the development may have on, or ways in which the development may impede or be incompatible with, any oyster aquaculture development or priority oyster aquaculture area, and (b) any measures to avoid or minimise any such adverse effect, impediment or incompatibility."
Secondly, cl 15C requires: "A consent authority may refuse to grant consent to development: (a) if it is satisfied that the development will have an adverse effect on, or impede or be incompatible with: (i) any oyster aquaculture development that is being carried out (whether or not within a priority oyster aquaculture area), or (ii) any oyster aquaculture development that may in the future be carried out within a priority oyster aquaculture area, or (b) if it is not satisfied that appropriate measures will be taken to avoid or minimise any such adverse effect, impediment or incompatibility."
The Commissioner identified the need to consider the Sustainable Aquaculture SEPP. Although the Sustainable Aquaculture SEPP was repealed on 27 February 2019, by reason of the savings provisions, it continued to apply to Palm Lake's development application, which had been lodged prior to the repeal of the Sustainable Aquaculture SEPP (at [45]).
The Commissioner identified that Part 3A of the Sustainable Aquaculture SEPP details requirements for a consent authority to consider effects of proposed development on oyster aquaculture (at [46]). The Commissioner did not expressly note in this section of the judgment the requirement in cl 15B(1)(a) for the consent authority to consider whether the development may have an adverse effect on oyster aquaculture development or a priority oyster aquaculture area, but instead noted that, pursuant to s 15B(1)(b), notice of the development application had been given to the Director-General of the Department of Primary Industries. The Commissioner recorded the comments received from NSW Fisheries, which the Commissioner noted must be considered in determining the development application, pursuant to s 15B(2). The comments included that: "…the subject proposal risks degrading of water quality within North Creek and the Richmond River estuary generally. The risk is especially relevant to the nearby Priority Oyster Aquaculture Areas. Such an outcome is inconsistent with the intended outcome of SEPP62 which is to achieve no net deterioration of estuarine water quality and remediation of existing problems." (at [46]).
The Commissioner quoted cl 15C (at [47]). The Commissioner noted that pursuant to cl 15D the consent authority must take into consideration the NSW Oyster Industry Sustainable Aquaculture Strategy. Under cl 5.1 of this Strategy, "the oyster growing areas in North Creek (in the vicinity of North Creek Road) are designated 'Oyster Priority Areas'" (at [48]).
Although the Commissioner identified the tasks of consideration of relevant matters that she needed to undertake by reason of cl 15B and cl 15C of the Sustainable Aquaculture SEPP, she did not in fact undertake these tasks when she came to consider the impact of the proposed development on water quality and water quantity (in [139]-[162] of her reasons for judgments). The reason appears to be that the Commissioner rolled up consideration of all issues concerning water quality and water quantity and in doing so failed to give the particular consideration required by cl 15B(1)(a) and cl 15C of the Sustainable Aquaculture SEPP.
The Commissioner did note that in the joint report of Dr Johnson (called by the Council) and Dr Martens (called by Palm Lake), Dr Johnson expressed concern that the Stormwater Management Plan did not demonstrate that water quality in North Creek would not be adversely affected by the development. Dr Johnson opined that "given the proximity of the SEPP62 Priority Oyster Areas, it is necessary to demonstrate that there would be a non-worsening effect from ground water discharges from the site" (at [143]).
The Commissioner recorded the Council's submission that there was a risk that the development might potentially contaminate the priority oyster aquaculture area adjacent to North Creek Road (at [147]) and that the effect of cl 15C of the Sustainable Aquaculture SEPP is that: "a consent authority must refuse a development application 'if it is satisfied that the development will have an adverse effect on, impede or be incompatible with any oyster aquaculture development that may in the future be carried out within a priority oyster aquaculture area or if it is not satisfied that appropriate measures will be taken to avoid or minimise such adverse effect, impediment or incompatibility.'" (at [148]).
The Council submitted that on the basis of the evidence of Dr Johnson, "the Court could not form the requisite satisfaction and should refuse consent" (at [148]).
In the section on her findings on water quality and water quantity, the Commissioner set out in full cl 15B of the Sustainable Aquaculture SEPP (at [155]). Nevertheless, the Commissioner appears to have focused only on the requirement for consultation with the Director-General of the Department of Primary Industries and to have understood that requirement as applying only to the Council, as the consent authority originally determining the development application, not also to her in hearing and disposing of the appeal against the Council's determination. This is evident from the fact that immediately after quoting cl 15B, the Commissioner stated: "The required consultation was undertaken and a response provided by the NSW Department of Primary Industries (DPI) on 13 August 2018." (at [156]).
The Commissioner did not appear to appreciate that cl 15B(1)(a) might apply to her in hearing and disposing of the appeal.
The Commissioner then set out (at [156]) a different concern in DPI's response, about the impact of the development on water quality, rather than the concerns she had earlier set out (at [46]) about risk to nearby priority oyster aquaculture areas.
The Commissioner then left the subject of cl 15B, and indeed the subject of the Sustainable Aquaculture SEPP as a whole, and addressed the remaining issues identified by the hydrology experts. The Commissioner identified these as: "the MUSIC model parameters and how they reflect the existing site conditions; the impact of the development on ground water recharge; and the quality of water leaving the site." (at [157]).
The Commissioner addressed these remaining issues in [158]-[161] of her reasons. The Commissioner found, relying on an earlier report prepared for the development application for the adjoining senior housing development, that the proposed development "achieves a demonstrable improvement in water quality" (at [159]) and that "no material change in the pH, salinity, aluminium or iron levels in any water leaving the site is expected" (at [160]). The Commissioner's rolled up conclusion was that "I am satisfied that there are no hydrological matters that would warrant the refusal of the application" (at [162]).
The Council submitted that the Commissioner failed to undertake the consideration of relevant matters required by cl 15B(1)(a) and cl 15C of the Sustainable Aquaculture SEPP. Although the Commissioner identified the need to consider these matters, she failed to do so. The Commissioner's global and generalised consideration of water quality and water quantity issues was not sufficient to discharge the statutory requirement to consider the particular matters in cl 15B(1)(a) and cl 15C. The Commissioner did not consider these particular matters but instead substituted for the statutory requirements a different approach of consideration of the general issues of water quality and water quantity. The particular matters in cl 15B(1)(a) and cl 15C "ought to have served as a focal point for, or constituted a fundamental element in," her deliberations: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [76], [77].
Palm Lake submitted that the Commissioner correctly identified the matters in cl 15B(1) and cl 15C of the Sustainable Aquaculture SEPP as matters to be considered and did deal with those matters as part of her consideration of water quality and water quantity. This was appropriate as the matters in cl 15B(1)(a) and cl 15C concern the potential adverse effect of a development on oyster aquaculture. The cause of any adverse effect on oyster aquaculture would be by the development changing the water quality or water quantity.
Palm Lake submitted that Dr Johnson's opinion that the development might adversely affect water quality in North Creek and nearby priority oyster aquaculture areas was founded on his concern about the MUSIC model and incorrect input values to that model (one of which was the absence of baseline water quality data). Palm Lake submitted that the Commissioner dealt with, and rejected, Dr Johnson's concerns about the MUSIC model and the absence of baseline water quality data in her discussion in [157]-[161]. As a result, the Commissioner concluded that there were no hydrological matters that would warrant the refusal of the development application (at [162]). Palm Lake submitted that, by this approach of dealing with the underlying concerns, the Commissioner dealt with and rejected Dr Johnson's opinion that there was a risk the development might adversely affect nearby priority oyster aquaculture areas.
I find that the Commissioner did fail to consider the matters in cl 15B(1)(a) and cl 15C of the Sustainable Aquaculture SEPP. As Zhang v Canterbury City Council makes clear, statutory requirements that particular matters be considered in determining a development application must serve "as a focal point" for, or constitute "a fundamental element" in, a consent authority's consideration and determination of a development application. The language of the relevant matters in cl 15B(1)(a) and cl 15C of the Sustainable Aquaculture SEPP is particular. This particular language framed and focused the task of consideration that the Commissioner was required to undertake in determining the development application.
The Commissioner's reasons reveal that she failed to consider the relevant matters in cl 15B(1)(a) and cl 15C with this frame and focus, but instead substituted a different approach of generalised consideration of water quality and water quantity. This is plain not only from what the Commissioner did state, but also what she did not state in the Commissioner's reasons.
In terms of cl15B(1)(a) of the Sustainable Aquaculture SEPP, the Commissioner does not identify in her reasons what are the nature and location of the development or whether, by reason of its nature and location, the development may have an adverse effect on oyster aquaculture development or a priority oyster aquaculture area. The Commissioner does not identify any oyster aquaculture development that might occur in the area or identify the location and proximity of any priority oyster aquaculture area (beyond noting in general terms that there are priority oyster aquaculture areas in North Creek in the vicinity of North Creek Road). The Commissioner does not identify the potential vectors of impact of the proposed development on oyster aquaculture development or a priority oyster aquaculture area. The Commissioner does not identify what might be the potential ways the development might have an adverse effect on oyster aquaculture development or a priority oyster aquaculture area.
In terms of cl 15C of the Sustainable Aquaculture SEPP, the Commissioner does not address in her reasons not only whether the development may have "an adverse effect on", but also whether the development might "impede" or "be incompatible with", current or future oyster aquaculture development (cl 15C(a)). These types of impacts of development in cl 15C(a) have different meanings and the Commissioner was required to consider whether the proposed development will have any of these types of impacts. The Commissioner was required to identify any oyster aquaculture development that is being carried out, whether or not within a priority oyster aquaculture area (cl 15C(a)(i)). The Commissioner failed to identify any oyster aquaculture development, even within the nearby priority oyster aquaculture areas in North Creek. The Commissioner was also required to identify any oyster aquaculture development that may in the future be carried out within a priority oyster aquaculture area (cl 15C(a)(ii)). The Commissioner did not do so. The Commissioner was required to consider what, if any, appropriate measures were proposed to be taken to avoid or minimise any adverse effect, impediment or incompatibility with current or future oyster aquaculture development and whether those measures will avoid or minimise any adverse effect, impediment or incompatibility (cl 15C(b)). The Commissioner did not identify or evaluate any measure to avoid or minimise any adverse effect, impediment or incompatibility.
Unless the Commissioner considered these particular items and issues in cl 15B(1)(a) and cl 15C, her generalised consideration of water quality and water quantity cannot be taken to involve consideration of the relevant matters in cl 15B(1)(a) and cl 15C of the Sustainable Aquaculture SEPP.
I uphold ground 6, the impact on aquaculture ground.

The Acid Sulfate Soils Management Plan ground

Clause 7.1(2) of Ballina LEP requires development consent to be obtained for the carrying out of works described in the Table to the subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. It was common ground between the parties that the proposed development involved works described in the Table to subcl 7.1(2) on land shown on the Acid Sulfate Soils Map.
Clause 7.1(3) provides: "Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority."
Palm Lake did prepare and provide to the Council a document described as Acid Sulfate Soils Management Plan (Revision 3, dated April 2019). This plan was superseded by the Revision 4 plan dated July 2019, which was tendered before the Commissioner. The Commissioner said she was satisfied that the pre-condition in cl 7.1(3) of Ballina LEP was met (at [228]). Presumably, this was because "the Applicant has prepared an Acid Sulfate Soils Management Plan" (at [227]). The Commissioner added: "Further, the proposed conditions of consent include the requirement to update the plan prior to the commencement of work. The updated plan is to include a determination of whether monosulfidic black ooze is present in the Western Creek and determine appropriate management measures relevant to the proposed development if it occurs. I am satisfied this condition is appropriate and will provide further controls on the management of acid sulfate soils on the site if required." (at [228]).
The Council makes a simple point on this ground of appeal. The statutory requirement of clause 7.1(3) is that an Acid Sulfate Soils Management Plan be prepared for "the proposed works". This must include all of the proposed works. In this case, the Acid Sulfate Soils Management Plan provided by Palm Lake to the Commissioner did not include all of the proposed works; it did not address the proposed stormwater management works or vegetation management works in the Western Creek line. The Commissioner sought to remedy this deficiency by imposing condition 60 of the consent requiring the provision of a revised acid sulfate soils management plan addressing all works that are required to be undertaken to the Western Creek line. However, the Council submitted, cl 7.1(3) required this plan to address the proposed works, including the works to the Western Creek line, before the Commissioner could grant consent. Hence, the precondition in cl 7.1(3) was not satisfied and the Commissioner was precluded from granting consent.
Palm Lake made three submissions in response. First, Palm Lake submitted that the Acid Sulfate Soils Management Plan not only included work on the development pad but also works to the Western Creek. The Acid Sulfate Soils Management Plan attached certain plans, including one of the development application plans. The attached plans were at a very high level of generality, but included the development pad and the Western Creek.
Secondly, Palm Lake submitted that the term "proposed works" in cl 7.1(3) refers to the works proposed in the development application. Palm Lake contended that its development application did not include any works within the Western Creek line. Whatever works were to be undertaken in the Western Creek line were required to be undertaken for the existing seniors housing development. The Western Creek separated the existing seniors housing (to the west) and the proposed seniors housing development (to the east). The 2004 consent for the existing seniors housing development required works to be carried out in the Western Creek line, including works under the existing Creek and Vegetation Management Plan required by a condition of that consent.
Palm Lake submitted that in these circumstances, even if the Acid Sulfate Soils Management Plan did not address the works to the Western Creek line (in the alternative to its first submission), it was not required to do so as those works were not "proposed works" the subject of the development application.
Thirdly, Palm Lake submitted that the fact that condition 60 of the consent requires revision of the Acid Sulfate Soils Management Plan does not suggest any defect in the plan that was before the Commissioner. Rather, and as the condition identified, the suite of conditions of consent required the preparation of a variety of plans and documents. Condition 60(i) accepted that the preparation of those plans and documents (to comply with other condition of consent) may require some specific works to be undertaken to the Western Creek line.
This approach does not identify any problems with the Acid Sulfate Soils Management Plan. Rather, it accepts that the Plan, being one that was appropriate for the "proposed works", nevertheless may require revision in order to accord with the totality of the "works" approved (including as amended by conditions of consent).
I find that the precondition in cl 7.1(3) of Ballina LEP was not satisfied and hence the Commissioner had no power to grant consent to the carrying out of the proposed works. The Council's submission is correct. Clause 7.1(3) requires the preparation of an acid sulfate soils management plan for all of the proposed works, not some of them.
As a matter of fact, the Acid Sulfate Soils Management Plan provided to the Commissioner addressed some of the proposed works, being the works on the development pad, but did not address other proposed works, including the stormwater management works and vegetation management works in the Western Creek line.
The Acid Sulfate Soils Management Plan before the Commissioner (Revision 4, July 2019) described the proposed development as including "the construction of 77 low density residential dwellings, with associated facilities" and attached a plan from the development application showing the layout of the proposed development (in Attachment 1): pp 4, 6. That plan showed the layout of the dwellings and roads on a development pad to the east of the Western Creek, although one road, Road 7, crossed the creek to link the existing seniors housing development to the west of the creek with the proposed seniors housing development to the east of the creek.
The Acid Sulfate Soils Management Plan stated that "[b]ased on the civil engineering plans, there will be minimal material excavation required for the creation of the primary development footprint…as the entire development will be situated on a fill pad. Bioretention basins will be constructed above existing ground level. Based on the above, a nominal 500 tonnes of disturbed material is assumed to require treatment for ASS during construction" (pp 4, 6). The Plan was therefore based on the earthworks to the development pad and did not include any works to the Western Creek line.
The Plan noted that "two 'islands'" of remnant shrubs and trees are also present in the central portions of the site. These islands will need to be removed prior to the development of the site. The remainder of the site area is covered with grass. The ASSMP assumes that the vegetation and the grass will be removed from the site prior to the placement of fill materials to raise the level of the site for development" (p 4). The Plan does refer, in its discussion of site conditions, to remnant vegetation around the site perimeter and that "a surface water channel runs along the entire length of the site's western boundary, which presumably discharges into North Creek (south)" (at p 7). However, the Plan does not refer to any vegetation around the site perimeter or along the Western Creek line being cleared. The only area in which vegetation is stated to be cleared is within the development pad.
The Plan is based on the Acid Sulfate Soils investigation conducted in January 2018, comprising the drilling of 19 boreholes across the site (p 7). A figure showing the approximate location of the boreholes was attached (Attachment 2). That figure reveals that none of the bore holes were drilled along the Western Creek line.
The Plan recommended developing the treatment pad on top of imported fill material (p 13). This was on the development pad, not in the Western Creek line.
The Plan later described its scope and limitations. It stated that: "The data and advice provided herein relate only to the project and structures described herein...The advice tendered in this report is based on information obtained from the assessment locations, test points and sample points and is not warranted in respect to the conditions that may be encountered across the site other than these locations. It is emphasised that the actual characteristics of the subsurface materials may vary significantly between adjacent test points and sample intervals and at locations other than where observations, exploration and investigations have been made" (p 25).
Accordingly, the Acid Sulfate Soils Management Plan before the Commissioner did not address any works in the Western Creek line.
This conclusion did not mean, however, that the works in the Western Creek line were not part of the "proposed works". The development application and plans and accompanying reports in support identify works in the Western Creek line. Road 7, linking the existing and proposed seniors housing developments, crosses the Western Creek. The Stormwater Management Plan proposed that the development site "discharge to an unnamed mapped watercourse which flows along the west of the proposed development. Each of the four biofiltration basins are to convey flows to the watercourse. The basins are to convey flows to the watercourse via piped or overland systems" (p 22 of Concept Stormwater Management Plan, June 2019).
The Vegetation Management Plan prepared for the proposed development noted that it replaced the existing Creek and Vegetation Plan of Management (CVPM) prepared in 2008 for the existing seniors housing development (p 1.2). The Vegetation Management Plan noted that some works specified in the existing CVPM have not been maintained, including maintaining native vegetation for bushfire protection purposes (p 1.2).
The Vegetation Management Plan proposed management of "Zone 2 - Riparian Corridor", which extends 10-20 metres either side of the centre line of "the un-named Creek that flows along the western boundary of the proposed development site" (p 3.2). Recommended management included "broad-scale weed control and subsequent revegetation". Further, "although revegetation will be undertaken, it will be managed and thinned if required to ensure that the Creek does not become choked with vegetation with subsequent impacts to flow regime and water quality. The vegetation in Zone 7 will also be managed so that it is at densities appropriate to protect existing development from bushfire hazard. Dense undergrowth in this area will be removed in order to maintain the riparian zone as a low risk area for mosquito breeding…" (pp 3.2-3.3).
These road, stormwater and vegetation management works in the Western Creek line were "proposed works" and part of the development the subject of the development application. The expert evidence before the Commissioner also identified other works that needed to be done to the Western Creek line. This evidence was the foundation for the Commissioner imposing conditions of consent, including condition 60 requiring revision of the Acid Sulfate Soils Management Plan to address these works to the Western Creek line. These additional works became part of the proposed works.
As a consequence, the Acid Sulfate Soils Management Plan provided to the Commissioner did not fall within the statutory description in cl 7.1(3) of being "an acid sulfate soils management plan…prepared for the proposed works". In the absence of an acid sulfate soils management plan answering the statutory description, the Commissioner had no power to grant consent under cl 7.1(3) to the proposed works.
The objective of cl 7.1 is clear: "to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage." (cl 7.1(1)).
The means to achieve this objective is to require the preparation and provision to the consent authority of an acid sulfate soils management plan for any proposed works that might disturb, expose or drain acid sulfate soils and cause environmental damage. This plan informs the consent authority's consideration and determination of the development application for the proposed works. The objective of the clause and the statutory process for consideration and determination of a development application for proposed works on acid sulfate soils cannot be achieved if an acid sulfate soils management plan has been prepared for some but not for all of the proposed works.
In the present case, an acid sulfate soils management plan was not prepared for the stormwater management works and vegetation management works in the Western Creek line and hence the Commissioner did not have the opportunity to consider whether and how the acid sulfate soils in the Western Creek would be managed so as not to cause environmental damage. That assessment was deferred for later consideration by the Council through the Commissioner imposing condition 60 on the consent requiring the revision of the Acid Sulfate Soils Management Plan provided to the Commissioner. The Acid Sulfate Soils Management Plan was required to be revised to include, amongst other information: "i. Detailed description of all works that are required to be undertaken to the western creekline and along North Creek Road, as identified in any of the plans and documents prepared to address the conditions of this consent; ii. Detailed description of all steps relevant to Acid Sulfate Soils is to be provided, including, but not limited to, the estimated volume of soil to be treated, the amount of lime to imported to site, the size and location of capture basin and the volume of leachate to be treated. … viii. A survey is to be undertaken of the western creekline sediments to determine whether Monosulfidic Black Oozes (MBOs) are present or not. If MBO's are found to be present, the plan must provide a robust assessment of how the development may influence any issues related to MBO. ix. The management of potentially disturbed Monosulfidic Black Oozes during construction works for the proposed development, to prevent impacts on aquatic organisms in the western creekline and downstream receiving environments, including North Creek and tributaries thereof; x. The plan is to specifically acknowledge the Priority Oyster Aquaculture Area in North Creek and provide a detailed assessment of the risks to water quality associated with ASS/MBO..."
These matters concerning the proposed works in the Western Creek line and their impacts are the very matters that needed to be addressed in the Acid Sulfate Soils Management Plan prepared for the proposed works under cl 7.1(3). Their omission from the Acid Sulfate Soils Management Plan provided to the Commissioner caused that plan not to be "an acid sulfate soils management plan…prepared for the proposed works" for the purposes of cl 7.1(3).
I uphold ground 7, the Acid Sulfate Soils Management Plan ground.

The Coastal Management SEPP ground

At the time of lodgment of Palm Lake's development application, the Coastal Management SEPP was in force and applied to the land. Clause 11 of the Coastal Management SEPP set a precondition to the grant of consent to development on land identified as "proximity area for coastal wetlands". Parts of the land to be developed were identified as "proximity area for coastal wetlands". Clause 11(1) of the Coastal Management SEPP provided: "(1) Development consent must not be granted to development on land identified as "proximity area for coastal wetlands" or "proximity area for littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on - (a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or (b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest. (2) This clause does not apply to land that is identified as "coastal wetlands" or "littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map."
The Commissioner found for herself (at [37]-[39]) that the Coastal Management SEPP did not apply but instead that SEPP 14 applied. It is common ground between the parties that the Commissioner was in error in finding that the Coastal Management SEPP did not apply and that SEPP 14 did apply: see similarly S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd t/as Planners North v Northern Regional Planning Panel (No 2) [2019] NSWLEC 199 at [48].
One consequence of the Commissioner's error was that she did not consider and form the required opinion of satisfaction under cl 11(1) of the Coastal Management SEPP. The Commissioner did quote cl 11(1) of the Coastal Management SEPP (in [42]), but did not address its terms in her consideration of the impacts of the development.
The Council submitted that the Commissioner erred on a question of law in applying SEPP 14 rather than the Coastal Management SEPP. This had the consequence that the Commissioner failed to consider and form the required opinion of satisfaction under cl 11(1) of the Coastal Management SEPP before she granted consent. The Council noted that it had raised as a contention that the Court could not reasonably be satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland. The Commissioner recorded this contention (at [6(9)]). This contention picked up aspects of cl 11(1)(a) of the Coastal Management SEPP. The Commissioner failed to address the contention and hence cl 11(1) of the Coastal Management SEPP.
The Council submitted that, at most, the Commissioner might have partially addressed the impact of the proposed development on the hydrological integrity of the adjacent coastal wetland as part of her global and generalised consideration of water quality and water quantity issues in [157]-[162]. But even then, there was no focus on the terms of cl 11(1)(a) or formation of the required opinion of satisfaction that the proposed development "will not significantly impact on": "(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or (b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest." (cl 11(1)(a) and (b)).
The Council submitted that neither the Commissioner's factual findings in [158]-[161] nor her conclusion in [162] that "there are no hydrological matters that would warrant the refusal of the application" amount to the formation of the positive opinion of satisfaction that the development would not significantly impact on the matters in cl 11(1)(a) or (b) of the Coastal Management SEPP.
Palm Lake conceded that the Commissioner had erred in holding that SEPP 14 applied and that the Coastal Management SEPP did not apply. Palm Lake nevertheless sought to argue that the Commissioner had considered and formed the required opinion of satisfaction under cl 11(1) of the Coastal Management SEPP. Palm Lake noted that the Commissioner had quoted cl 11(1) in [42] and had recorded the Council's contention based on cl 11(1)(a) in [6(9)]. Palm Lake contended that the Commissioner's consideration of water quality and water quantity issues was sufficient. It was not necessary for the Commissioner to identify expressly in that consideration the clause or its terms; it was sufficient that she addressed the matters raised by the clause.
I find that the Commissioner did fail to consider and form the required opinion of satisfaction under cl 11(1) of the Coastal Management SEPP. The Commissioner's failure to do so is obvious. First, the Commissioner held erroneously that the Coastal Management SEPP did not apply but instead that SEPP 14 did apply.
Secondly, the Commissioner never addressed in her consideration of the impacts of the proposed development the terms of cl 11(1) of the Coastal Management SEPP. The Commissioner does not identify and describe "the adjacent coastal wetland" for the purposes of cl 11(1)(a) and (b) or its "biophysical, hydrological or ecological integrity" in cl 11(1)(a). Without doing so, the Commissioner was in no position to assess whether the development would impact, let alone significantly impact, on "the biophysical, hydrological or ecological integrity of the adjacent coastal wetland" (cl 11(1)(a)).
The Commissioner did not identify or describe "the quantity or quality of surface and ground water flows to and from the adjacent coastal wetlands" (cl 11(1)(b)). The global and generalised discussion about water quality and water quantity in [157]-[162] is not sufficient. The Commissioner needed to focus on and make findings concerning the particular matters of "the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland" in cl 11(1)(b). The Commissioner did not do so. Again, without focusing on and making such factual findings, the Commissioner was in no position to form the required opinion of satisfaction that the proposed development would not significantly impact on "the quantity or quality of surface and ground water flows to and from the adjacent coastal wetlands" (cl 11(1)(b)).
The Commissioner's rolled up conclusion in [162], that "there are no hydrological matters that would warrant the refusal of the application", is not capable of being taken as a statement that the Commissioner had formed the opinion of satisfaction that the proposed development would not significantly impact on the particular matters in cl 11(1)(a) and (b) of the Coastal Management SEPP.
In the absence of the Commissioner forming the required opinion of satisfaction, the Commissioner was precluded by cl 11(1) from granting consent to the proposed development.
I uphold ground 6, the Coastal Management SEPP ground.

Conclusion

The Council has succeeded in establishing five of its grounds of appeal. The errors, both individually and cumulatively, are material and vitiate the Commissioner's decision. The Commissioner's decision and orders should be set aside and the matter remitted to the Commissioner to be redetermined according to law.
Palm Lake submitted that remitter is futile as the site compatibility certificate has expired, so that consent can no longer be granted to the proposed seniors housing development. This might be so, but Palm Lake can apply for another site compatibility certificate. In the meantime, it can seek an adjournment of the remitted proceedings before the Commissioner to await the outcome of its application for another site compatibility certificate.
The costs of the appeal should follow the event.
The Court orders: 1. The appeal is upheld. 2. The decision and orders of Commissioner Dickson dated 4 October 2019 are set aside. 3. The proceedings are remitted to Commissioner Dickson to be determined according to these reasons for judgment. 4. The respondent is to pay the costs of the applicant of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2020

(2013) 201 LGERA 116

(2006) 146 LGERA 271

(2000) 111 LGERA 181

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