Chase Property Investments Pty Limited v Blue Mountains City Council & Anor

Chase Property Investments Pty Limited v Blue Mountains City Council & Anor - [2005] NSWLEC 457 - NSWLEC 2005 case summary — Zoe

[24]

13 If a purposive approach is taken and the zone objectives contained in cl 6.3 of the LEP are considered disposal of sewage by the Sydney Water sewer alone rather than through reuse is contrary to that objective. In the alternative If the clause does require disposal by the Sydney Water sewer the Applicant argued that cl 10.8(e) is a development standard and can be varied in the exercise of the Court's discretion pursuant to State Environmental Planning Policy No 1 - Development Standards ("SEPP 1"). Finding on cl 10.8(e) 14 Clause 10.8(e) applies to land zoned Residential Bushland Conservation Zone and states that subdivision cannot take place unless each lot to be created is connected to a reticulated sewerage system (i) and that Sydney Water has certified that the STP for the area can accommodate the additional development (ii). The issue is whether this clause requires that the reticulated sewerage system must be the public sewer. That interpretation is open on the wording of the section but is not explicitly so stated. 15 In order to determine the meaning of cl 10.8(e) it is necessary to consider other provisions of cl 10 particularly cl 10.8(f) and cl 10.8(d). Clause 10.8(f) does not apply to land zoned Residential Bushland Conservation Zone. It requires the Council to refuse consent to any development unless it is connected to a reticulated sewerage system or the Council is satisfied that on-site disposal is effective. This suggests strongly that cl 10.8(e) applies to public reticulated sewerage systems which take sewage off the site. This interpretation is strengthened given that "and" in cl 10.8(e) is clearly intended as a conjunctive so that Sydney Water certification as to capacity of the relevant STP, to which the reticulation system is connected by implication, must be obtained. I do not agree with the Applicant's submission that the use of "and" in cl 10.8(d), where it is not a conjunctive, implies the same use of "and" in cl 10.8(e) as the purpose of the clauses is different.

[27]

18 Is it enough that the reticulated sewerage system proposed is intended to partly deliver sewage off site from the public sewer? About 8,571 litres/day is intended to go to the Sydney Water sewer with 26,633 litres/day to be disposed of on-site. Given my finding above I do not think that partial disposal of sewage off site through the public sewer is sufficient and in any event the vast bulk of sewage in this case will be treated on-site under the current proposal. If the clause is not a development standard to which SEPP 1 can apply then the development is not permissible. Whether cl 10.8(e) is a development standard 19 Is cl 10.8(e) of the LEP a development standard? Development standard is defined in s 4 of the EP&A Act to include: provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: … (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and … 20 The question arises as to whether the clause is concerned with a characteristic of the land or of an aspect of the development. In North Sydney Municipal Council v P D Mayoh (No 2) (1990) 71 LGRA 222 the Court of Appeal per Clarke JA stated at 236 that: There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development. Further, Mahoney JA stated at 234: I do not think that cl 14A(a) is a provision 'in relation to the carrying out of development ...'. There is, in my opinion, a distinction in the provisions between a provision which in form provides: 'On land of characteristic X no development may be carried out' and a provision which in form provides: 'On such land development may be carried out in a particular way or to a particular extent.' The provision in cl 14A(2) is, I think, of the latter kind. If cl 14A(1)(a) provided merely that 'no building shall be erected on land in Zone No 2(c) if ...' the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of 'a residential flat building'. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to 'the carrying out of' development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings which would overshadow smaller buildings at the particular place. This is not a matter relating to 'development standards' but to the carrying out of development at all.

[36]

(ii) Whether the development is designated development 28 Pursuant to cl 4(1) of the Environmental Planning and Assessment Regulation 2000 ("the Regulations") development described in Pt 1 of Sch 3 of the Regulations is declared to be designated development for the purposes of the EP&A Act. Clause 29(4) of Sch 3 of the Regulations states that the following is classified as designated development: Sewerage systems or works that release or reuse more than 20 persons equivalent capacity or 6 kilolitres per day of sewage, effluent or sludge and that are located: (a) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or (b) in an area of high watertable, highly permeable soils or acid sulphate, sodic or saline soils, or (c) on land that slopes at more than 6 degrees to the horizontal, or … (g) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development. 29 The parties agreed that the proposed sewerage treatment system comes within the description in cl 29(4) of Sch 3 of the Regulations. The issue arises as to whether the use of an STP can be characterised as an independent use so that the development is therefore designated. RAID's submissions 30 RAID submitted that the area of land proposed for on-site waste water disposal and for the construction of the STP was of such a scale that the proposed STP constituted an independent and separate use of the land. RAID noted that the proposed STP will comprise more than 2ha. 31 This use of the land could be contrasted to the proposed use for residential development which has a floor space of 0.94ha and a proposed building and garden coverage of 0.7265 ha. The land on which the STP will be constructed is also an area separate from the residential development, which is confined to another area on the Parklands site. RAID, relying on the Court of Appeal decision in Penrith City Council v Waste Management Authority (1990) 71 LGRA 376, emphasised that each case had to be considered on its merits.

[42]

39 Penrith City Council v Waste Management Authority emphasises that the particular circumstances of each case must be considered. The extent of the use of the land for the STP must be determined to see if it is sufficiently separate and substantial use from the tourist/residential development as to hold that the proposal is designated development. 40 According to the Martens Report the STP is proposed to occupy a minimum 1.7ha of the 10.6ha Parklands site which includes several areas of the site identified for on-site irrigation by treated effluent. The area of the site suitable for irrigation is 3.2ha. The Martens Report recommends a 300,000 litre storage facility for the proposed development. Such a facility will provide a retention capacity of nine days. The actual plant will be at the northern end of the site. The estimated sewage generation rate for the development is 35,204 litres/day. Utilising the discharge allowance of 8,571 litres/day to Sydney Water's sewer, the estimated volume of sewage to be treated and disposed of on-site is 26,633 litres/day. 41 I do not consider the proposed sewage disposal system is so significant that it can be characterised as a separate use of the site. While the area to be potentially used by the system is not small, that area consists largely of irrigation areas where treated effluent is used on gardens and vegetated areas. That scale of use does not render this a separate use. The actual STP occupies a relatively small area to the north of the site. Given the site area of 10.6ha this is not a sufficiently large area to warrant a finding that it is a separate use. It is also material to consider as Talbot J did in Evans, the reason why the STP is necessary. Its sole purpose is to support the tourist/residential use proposed for the land. While that is not conclusive of the matter, it is another factor to consider and suggests the proposal is not designated development. The proper construction of cl 30 of the LEP 42 Initially an issue in relation to the calculation of the Principal Development Area under the LEP arose. The Principal Development Area of a site is calculated by reference to the Table contained in cl 30 of the LEP. The parties have now agreed that the Principal Development Area calculation must include the following aspects of the proposed development: (a) all components of the on-site effluent disposal system; (b) all landscaped areas and gardens; (c) all proposed carparking areas . The parties agreed that all proposed roads and footpaths are not included in the calculation of the Principal Development Area. Findings 43 The Court makes the following findings:

The proper construction of cl 10.8(e) of the Blue Mountains Local Environmental Plan 1991 requires that the proposed development in development application no. X05/0412 be serviced by a Sydney Water reticulated sewerage system;
Clause 10.8(e) of the Blue Mountains Local Environmental Plan 1991 operates as a development standard; and
Development application no. X05/0412 is not designated development under the Environmental Planning and Assessment Act 1979.

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Judgment (44 paragraphs)

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