Denis Gelle Pty Ltd and Integrated Site Design Pty Ltd v Baulkham Hills Shire Council

Land and Environment Court (NSW)|2001-10-25|Before: Pearlman J

For the reasons set out in this judgment, I have concluded that: (1) the 50 sites application should be refused on the ground of unacceptable visual impact;

(2) the rock wall application should be approved on the ground that the impact on both riparian vegetation and scenic quality will not be unacceptable; and

(3) the condition 17 application should be refused on the ground of flood hazard.

The Ko Veda caravan park and the adjoining lot D (collectively "the land") are on the eastern bank of the Hawkesbury River, a little over 1 km from the township of Wisemans Ferry. The caravan park has an area of 9.763 ha and contains 112 short-term sites, 10 long-term sites and 20 camping sites. Forty-three of the 122 long and short-term sites are approved for cabins. The 43 cabin sites are located in a line parallel to the river bank.

Lot D has an area of 6.11 ha. The river bank on lot D is about 400 m long. The northern part of the bank appears eroded. The southern section appears in better condition with dense vegetation of the reed species Phragmites australis along the water's edge. Otherwise it contains no significant vegetation. Except for an elevated knoll on the land on which the manager's residence is located, the majority of the land is 4 m below the level of the 1:100 flood event. The only way out of the land is via River Road that is itself inundated where it crosses Webbs Creek.

The high scenic value of the land derives from the curving line of the river bank that reveals continually changing views to those travelling on the river, and the steep wooded hills rising out of the flat land along the river bank. While there are several caravan parks along the river flats, the dominant visual experience is of natural rather than man made landscape. The Hawkesbury-Nepean Scenic Quality Study 1996 ("the Scenic Quality Study") published by the Department of Urban Affairs and Planning contained the following statement of significance at p 49: This outstanding scenic landscape is of high quality and national significance and is of acknowledged heritage significance. It has historic associations with the transport routes of the north and west of the Sydney region, has inspired artistic endeavour and has the formal and abstract attributes of high quality landscapes.

I note that the Court had the opportunity to view the land and to undertake a boat trip upstream from Wisemans Ferry on 13 September 2001.

A number of statutes, environmental planning instruments, policies and studies are relevant to the assessment of the three development applications. The Court has taken each of them into account generally. They are as follows: · Environmental Planning and Assessment Act 1979 ("the EP&A Act"); · Local Government Act 1993 ("the LG Act"); · Rivers and Foreshores Improvement Act 1948; · Fisheries Management Act 1994; · Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation"); · Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 ("the Caravan Regulation"); · Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River ("SREP 20"); · State Environmental Planning Policy No 21 - Caravan Parks ("SEPP 21"); · Baulkham Hills Local Environmental Plan 1991 ("LEP 91"); · NSW Floodplain Management Manual 2001 ("the Floodplain Manual"); and · Hawkesbury - Nepean Scenic Quality Study 1996.
These statutes and instruments interrelate and overlap in a number of respects, but the following are particular matters of relevance to the three development applications: (1) Development for the purpose of a caravan park is permissible with consent on land zoned Rural 1(b) under LEP 91 (Lot D is so zoned);

(2) Development consent is required for caravan park development on Lot D: - by reason of its zoning under LEP 91; - by cl 13 of LEP 91 by reason of its location within 1000 m of the Hawkesbury River; - by cl 16 of LEP 91 by reason of it being subject to the 1 per cent probability flood;

(3) No development consent is required by LEP 91 for the installation or placement of a moveable dwelling on a caravan park (cl 8(4A) of SEPP 21) but approval under s 68 of the LG Act is required;

(4) An approval under the LG Act is also required to operate a caravan park pursuant to s 68 of the LG Act and cl 11(1) of SREP 20;

(5) No building (other than pontoons, amongst others) shall be erected on land within 30 m of the Hawkesbury River (cl 13 LEP 91);

(6) SREP 20 requires certain general considerations to be taken into account (in determining whether or not to grant development consent for a caravan park) concerning total catchment management, environmentally sensitive areas, water quality and quantity, flora and fauna, riverine scenic quality and recreation and tourism;

(7) A number of particular controls and requirements are provided by SREP 20 in respect of pontoons, recreational facilities on flood prone land, land uses within 40 m of the bank of a river, land uses in riverine scenic areas, and sewerage works; (8) The Scenic Quality Study was prepared to complement and put in context the considerations, controls and requirements contained in SREP 20; and

(9) The Caravan Regulation requires that: - the council must be satisfied that the caravan park will be designed, constructed, maintained and operated in accordance with specific requirements about minimum size, community amenities, access, services, management and the like (cl 10(1) and divs 1 - 8 of pt 3); - in deciding whether or not to approve of the installation of a moveable dwelling, regard must be had to the principles in the Floodplain Manual and to specific requirements about off-site manufacture, setbacks, site coverage, and structural design, construction and installation (cl 11A); - the numbers, sizes and locations of short-term sites must be specified on a community map (cl 9(2)).

The main components of the 50 sites application are: · Development of a caravan park for 50 short-term sites. · Installation of 50 cabins on lot D. · Installation of an on-site sewage treatment system. · Erection of five timber ramps and pontoons in the river for the mooring of boats. · Landscaping in front of the cabin sites and along River Road. · A secondary exit to River Road near the manager's residence.

The applicant proposes to locate the 50 cabin sites along the river bank in a single line. Each site is 7.3 m wide, consequently the line of cabins stretches for 365 m. The cabins are 4.8 m wide, leaving a gap of 2.5 m between cabins. The cabins are to be 33 m from the river bank. The strip of land between the bank and the cabins is to be landscaped in accordance with a landscape plan prepared by EcoHort Pty Ltd. The landscape plan proposes the division of the landscaped area into triangular sections. Alternate sections are to be landscaped densely so as to screen the cabins from the river, while the remaining sections are to have lighter planting so as to allow view corridors from the cabins to the river.

Since the development is within 40 m of the river bank and includes ramps and floating pontoons, it requires the approval of the Department of Land and Water Conservation ("DLWC") under pt 3A of the Rivers and Foreshores Improvement Act. It also requires the approval of the Department of Fisheries pursuant to s 201 and s 205 of the Fisheries Management Act. Under s 91 of the EP&A Act the development is therefore integrated development. In addition, as one of its components is a sewage treatment plant on a floodplain, under sch 3 of the EP&A Regulation the development is designated development. An Environmental Impact Statement accompanied the development application.
In a letter dated 20 July 2000, DLWC indicated that it would issue an approval after the applicant receives development consent. In a letter dated 20 June 2000, the Department of Fisheries indicated that, subject to conditions, it had no objection to the development.

Prior to the hearing, the applicant revised its initial design of the proposed rock wall. No objection was taken to the hearing proceeding on the revised design. Accordingly, in referring to the rock wall application in this judgment, I am referring to the rock wall as revised.

The main components of the rock wall application are: · A rip rap structure with a batter slope gradient of 1 vertical to 2 horizontal along the northern 230 m section of the river bank. · An underlay of either geo-textile fabric or graded filter extending from the top of the bank to approximately 5 m below the low water mark. · Battering back of areas where the top of the wall is below the river bank with a grassed or vegetated batter slope of 1 vertical to 4 horizontal.

The rock wall application requires the approval of DLWC under pt 3A of the Rivers and Foreshores Improvement Act. It also requires the approval of the Department of Fisheries under the provisions of the Fisheries Management Act. The proposal is therefore integrated development under s 91 of the EP&A Act.

The condition 17 application is to modify development consent 87/674, issued by the council on 3 November 1987 in respect of the Ko Veda caravan park, by deleting condition 17 which states: During periods of flooding all caravans are to be evacuated in such a manner as to be accommodated within the area set aside for the storage of vans and at no times are they to be parked on River Road. The applicant shall submit a plan to Council detailing the area to be utilised for the parking of the caravans in times of flood including details as to flood free access to this area.

The council submitted a statement of issues for each of the three appeals. At the commencement of the hearing Mr Galasso, appearing for the council, rationalised the numerous issues by identifying the main issues as follows:

The 50 sites application · Is the visual impact of the 50 cabins acceptable? · Are cabins an appropriate use of flood liable land? · Is the danger from flooding acceptable? · Is the on-site treatment of effluent acceptable? · Is the impact of the pontoons on the riparian vegetation acceptable?

The rock wall application · Is the visual impact of the rock wall acceptable? · Is the impact of the rock wall on the riparian vegetation acceptable? · Is there a need for the rock wall? · Is the rock wall consistent with the principles of total catchment management?

The condition 17 application · Does the deletion of condition 17 increase the risk from flooding?

The Court heard the evidence of four objectors, Mr S J L McCartney of lot 18 River Road, Mr P M McKinley and Mrs L McKinley of Karma, River Road, and Mr A A Jackson of 2255 River Road. The objectors were concerned, in summary, that the line of 93 cabins will appear unattractive and unsympathetic to the scenic character of the Hawkesbury River. They do not believe that the strip of vegetation in front of the cabins is likely to be successful in screening them from view. The objectors are opposed to the rock wall as they do not believe it to be necessary. They consider the danger from flooding to be too severe to justify a caravan park on lot D.

Dr R Lamb, an expert for the council on assessing visual impact, gave evidence that may be summarised as follows: · The Scenic Quality Study places the land into the "Lower Portland to Wisemans Ferry" landscape unit and describes it as characterised by the dominance of natural elements such as the steep hillsides and natural vegetation. The Study notes that the alluvial flats are the location for small settlements, farms and recreational facilities such as caravan and ski parks. Development is generally of a low density and modest scale, although the Study identifies some existing recreational facilities as exceptions to this. The Study rates this landscape unit as possessing high scenic quality of national significance. · The major viewing position of the land is from the river. · The development would be of potentially high visibility, depending on the adequacy of screening. · The development would be seen as a linear series of repeated elements stretching over approximately 700 m. · The development would change the intrinsic visual character of the land. · Dr Lamb would not object to the development if he believed that it would be successfully screened from the river. However, he did not believe that the landscaping screen is likely to be successful. The dual objectives of screening the cabins from the river and providing viewing corridors from the cabins are inconsistent with each other. If the landscaping is dense enough to screen, there would be no view out from most cabins. If there are views, there will not be screening. · The landscaping proposal is therefore "not feasible and believable". · As regards the rock wall, Dr Lamb believed that the hard edge of a rock wall is inconsistent with the natural character of the river bank. However, he would not object to the wall if it were effectively screened by vegetation. In his view, the existence of vegetation is "critical" .

The applicant relied on three photomontages prepared by Haycraft Dulay Pty Ltd in support of the application. The first shows the development after 12 months, the second after three years and the third after eight years. The three years photomontage shows the cabins and rock wall substantially screened so that they are only slightly visible. The eight years photomontage indicates that the cabins and the rock wall will be completely screened. If this photomontage is correct, the development would not be perceived from the river.

The applicant's planning expert, Mr R W Smith, relied upon the landscaping proposal as mitigating the visual impact of the proposed development, but, in giving oral evidence, he accepted that without an effective screen the visual impact of 50 cabins would be unacceptable.

Mr Smith also accepted that, in order to assess the visual impact of the 50 sites application, the entire row of 93 cabins should be taken into account. Mr Smith saw no problem in implementing the landscape plan.

As regards the proposed rock wall, Mr Smith did not think that the acceptability of the rock wall relied on the screening effect of vegetation. He believed that the visual impact of the rock wall would be acceptable even if the applicant is unsuccessful in protecting the existing vegetation. The rip rap wall, unscreened and fully visible, would not significantly alter the appearance of the site. Mr Smith drew attention to the current neglected appearance of lot D and the scattered buildings on it that would be demolished as part of the development. In his opinion, the proposed development would improve the appearance of lot D.

Mr G R Sainty, an environmental consultant who gave evidence in the applicant's case, believed that the landscaping plan for the 30 m strip in front of the cabins is feasible. In giving oral evidence, conceded, however, that he knew of no examples of landscaping of the bank of a river that have succeeded in the dual function of screening from the outside and allowing views from the inside out.

Mr D Bewsher gave evidence for the council, while Mr H J Fiander gave evidence in the applicant's case. Both experts are engineers with particular experience in hydrology. It appears to be common ground between them that the 1:100 flood level is about 6.7 m AHD, while the level of the Probable Maximum Flood (PMF) is about 16.3 m.

Mr Bewsher arranged for the Water Research Laboratory of the University of New South Wales to model the flood characteristics of the site. He drew the following conclusions from the model: · The peak velocity of the 1:100 flood near the cabins is projected to be between 0.6 and 1.1 m/sec. A reasonable assumption for the velocity is 1 m/sec. · Mathematical models of floods do not accurately reflect real floods. Factors such as wind and eddies are not accounted for in the model. He recommended that the velocities should be increased by either a third or a half as a safety measure. The velocity that the cabins should therefore be designed to withstand is 1.33 m/sec. · Based on the hydraulic and hazard categories in the Floodplain Manual, that part of lot D where the cabins are to be located is high hazard floodway. The vast majority of the remainder of lot D is high hazard flood fringe. · Despite the fact that the new sites will be a relocation of approved caravan sites, the risk from flooding will be increased. This is because the sites will have permanent structures on them so that the site will be permanently occupied, while caravan sites are intermittently occupied as caravans can be removed. · The major risk is the risk to property. The risk to life is not high, although there will be an increase in risk compared to the existing situation. · A secondary sealed exit to River Road, suggested by the applicant's experts, is essential.

In cross examination Mr Bewsher agreed that there are mitigating factors that decrease the flood hazard on lot D. However, these factors were not sufficient to alter his opinion that the area of the proposed 50 sites is high hazard floodway.

Mr S J Opper, the State planning coordinator of the NSW State Emergency Service, did not support the proposed development. Mr Opper's principal point was that the preparation of a flood evacuation plan does not render an otherwise dangerous proposal safe. He believed that the role of flood evacuation plans is to reduce the risk of existing flood liable developments, not to justify new developments on flood liable land. Mr Opper's evidence supports Mr Bewsher's classification of lot D as high hazard.

Mr Fiander relied on a mathematical model that was different from that used by Mr Bewsher. He agreed, however, that both models are appropriate. He did not agree that the site should be classified as floodway. The gist of Mr Fiander's evidence was as follows: · Mr Bewsher has assumed lower surface roughness values than justified. Hence his model produces higher flood velocities than are likely to occur. · The peak flood velocity in the 1:100 event near the cabins is projected to be 0.8 m/sec. · A value of 1 m/sec is likely to be the maximum velocity at the location of the proposed cabins. · Since the new sites are to be a relocation of approved caravan sites, the risk from flooding is not increased. · While lot D is technically high hazard, there are many mitigating circumstances that reduce the risk. These circumstances are long warning times, high level of flood readiness and a competent evacuation plan.

Mr Fiander was supported by Mr M G Geary and Mr B M Druery, both civil engineers who gave evidence in the applicant's case. Mr Geary and Mr Druery believed that lot D is not a floodway, and Mr Druery considered that it is properly classified as flood fringe. In Mr Geary's opinion the risk to life is negligible. Both Mr Druery and Mr Smith noted that the cabins are to be constructed from waterproof materials, so that flooding will not significantly damage them. There may be risk to some fixtures such as stoves and fridges but there should be sufficient warning time to remove them. Mr Geary commented that the cabins are a second home and the fixtures in them therefore are not of critical value to the owner.

Mr K G Pye, a structural engineer retained by the applicant, told the Court that he had designed the tie down anchor piers that are to connect the cabins to the ground. He assumed a maximum flood velocity of 1 m/sec. If that assumption is increased to 1.33 m/sec, the ties and cabin structure would have to be redesigned. There is no difficulty in redesign.

Mr P R Andresen, a structural engineer who designed the cabin structure, told the Court that he assumed that the cabins would be completely submerged. He was confident that the cabins would withstand a flood event with a velocity of 1.1 m/sec and minimum buoyancy (albeit with some minor damage). He also agreed that the design of the cabins would have to be modified so that they could withstand a velocity of 1.33 m/sec, particularly if there was buoyancy.

As to the condition 17 application, Mr Smith pointed out that the Ko Veda caravan park originally had 122 caravan and camping sites. In 1987, development consent was formally granted in respect of 42 of those 122 sites, and at that time condition 17 was imposed. The consequence was that 42 caravans were required to be moved to storage in case of flood, and the remaining 80 sites were not subject to such a requirement. Subsequently, 43 sites were approved as cabins, and those sites corresponded to the 42 sites subject to condition 17. Hence there was no ongoing necessity to move caravans to a storage platform in time of flooding, and hence condition 17 should be deleted.

Mr R S Zwicker, who is the council's town planning co-ordinator, denied that the 43 cabin sites corresponded to the 42 sites subject to condition 17, and his opinion was that caravan sites will remain on the Ko Veda caravan park, with the consequence of risk in time of flooding. Hence condition 17 should remain.

The applicant proposes to install a sewage treatment system on lot D. The system will comprise: · 13 x 4,500 litre anaerobic tanks; · 2 x 114,000 litre collection wells; · 6 amended soil cells, with the trade name of Ecomax cells, the function of which is to purify the effluent; · 2 holding dams of 409 m 3 each; · on site absorption of treated effluent.

Dr D M Martens, an environmental engineer, gave evidence in the council's case. Mr P Harvey-Walker, also an environmental engineer, gave evidence for the applicant. Dr Martens agreed with Mr Harvey-Walker that if the treatment system achieves the results claimed in the Ecomax technical literature, the quality of effluent would be acceptable.

However, Dr Martens doubted that the quality can be achieved with a system based on only six Ecomax cells. These are too few to deal with 50 fully occupied cabins. He believed that a minimum of 40 cells would be required. Dr Martens based his opinion on the Ecomax technical literature that proposes two cells for a single residence. He calculated the capacity of each cell by reference to the amount of airspace within the cells, and 20 days detention time. Dr Martens assumed 20 days detention time, since this is what the Ecomax technical literature suggests.

Mr Harvey-Walker took issue. His assessment was based on a lower occupancy rate for the cabins than Dr Martens had assumed. He pointed out that the chemical reactions necessary to purify the effluent take less than 20 days. He agreed, however, that the assumption of a shorter detention time is not supported by the Ecomax technical literature. Mr Harvey-Walker has not seen an Ecomax system in action. He believed, however, that the fact that the system has been widely tested and is approved by Western Australian health authorities is sufficient guarantee of its performance.

The applicant would accept a condition of consent that requires monitoring of the effluent and for it to be pumped out during any period when the quality is below that claimed in the Ecomax literature.

The riparian vegetation on lot D (as indeed along much of the river bank) is a hard stemmed reed called Phragmites australis. The key components of the three development applications that may impact on this vegetation are the rock wall and the five timber ramps and pontoons.

Dr D J Robertson, an ecologist, gave evidence in the council's case. He was concerned that the rock wall will have an adverse effect on the Phragmites. He was also concerned that ski boats stopping and starting at the pontoons may cause wave action that will damage the vegetation. He did not think that the erosion of the river bank is of concern and that a rock wall is needed for any ecological purpose. In his opinion, it would be more sensitive to leave the bank in its present form and revegetate it. Dr Robertson agreed that there are examples along the river where Phragmites co-exist with rock walls.

Dr Martens did not think that the southern part of the river bank is unstable but he agreed that there was some slight instability in the northern portion of the bank. He agreed that top of the bank is retreating at a slow rate; however he thought that this is a natural phenomenon of the bank regrading to its original shape. Revegetating the bank was his preferred method of dealing bank instability. Dr Robertson and Dr Martens agreed that, if a rock wall is to be built, a sloping rip-rap wall would be much more suitable than a vertical wall.

Mr Zwicker agreed that the council has, in recent times, allowed several rock walls to be built along the river. One such wall is in front of the Torrens Ski Park.

Mr Sainty thought that the river bank is unstable and is subject to slumping and erosion. He believed that in this case, a sloping rip-rap wall is the best method to achieve stability. He saw no reason why the wall would disturb the Phragmites. He agreed that the Phragmites along the Ko Veda site were probably destroyed by ski boats. In this case, however, the pontoons will be clear of the Phragmites and will therefore protect the vegetation from much of the impact of boat use.

Mr Druery, who is the designer of the proposed rock wall, pointed out that the wave reflection qualities of the proposed wall will be less than of the existing bank, hence the impact on the Phragmites will be reduced. In his opinion, many of the rock walls along the river are poorly designed, so one cannot draw conclusions from them with regard to vegetation.

In addition to the evidence of its experts, the applicant relies on a memorandum, dated 29 May 2000, by Mr D Outhet, the principal geomorphologist of DLWC. The memorandum sets down Mr Outhet's view that the river bank is retreating and the main cause is wave action and a lack of trees or shrubs on the bank. The wave action at lot D appears to be too frequent and energetic for the use of vegetation by itself to stop the bank retreat. The roots of the reeds are being eroded by the more intense wave action in several places. His most favoured option for dealing with bank erosion was a sloping rock rip rap armour. This would allow vegetation to grow on the wall, eventually covering it.

According to Mr Zwicker (at p 25 of his written report), the rock wall proposal: fails to address total management principles and the cumulative environmental impact of the development upon the overall Hawkesbury - Nepean River system. The proposed rock wall structure … fails to address the proposal's relationship or impact with dynamic geomorphological processes of the river.

Mr Zwicker gained support from letters of 4 February 2000 and 30 June 2000 from the Hawkesbury - Nepean Catchment Management Trust (a body which is no longer in existence). In general, the Trust did not support rock walls as a response to bank erosion. The February letter states: In particular, the Trust advocates the retention and/or reestablishment of native riverbank vegetation as best practice for managing riverbank erosion, accepting that such measures will only help slow erosion, and not stop it altogether.

The visual impact on the river scenery is clearly the major issue. Dr Lamb and Mr Smith agreed that, without effective screening, the visual impact of the proposal is unacceptable. They also agreed that with effective screening the proposal would be acceptable. This evidence is tantamount to saying that the proposed development will be acceptable only if it cannot be seen.

Given that the proposal's acceptability depends on the effectiveness of screening, the likelihood that the proposed landscaping will perform as claimed is of paramount importance. On this issue the experts part company. Mr Smith saw no difficulty in implementing the landscape plan. He pointed out that the landscaped area is communal land and will be managed by the caravan park management. Dr Lamb thought that the proposal is not feasible and believable because the dense landscaping required for screening will obscure the views from the 50 individually owned cabins.

I prefer Dr Lamb's evidence. In my opinion, there is reason for concern that the landscaping will not turn out in reality as shown the landscape plans and will not achieve the degree of screening suggested in the applicant's photomontages. While I accept that the landscaping proposal is made in good faith, I do not think that good faith is sufficient to provide certainty that it can be implemented. The dense landscaping needed for effective screening is arguably in conflict with the interests of owners of the cabins.

I am strengthened in this view by the fact that the applicant is not proposing to delay the erection of the cabins until the landscaping has grown to maturity. The owners of the cabin will therefore have full views of the river when they purchase. As the landscaping becomes denser, the views will gradually diminish. It would need only minor interference to retard the growth or change the character of the landscaping. Any change that favours views will reduce the effectiveness of the screen.

I have given consideration to the attempt by the landscape designer to reconcile the conflict between screening and views by the proposed placement of alternate densely and lightly vegetated sections. Mr Smith agreed that this scheme would provide only "keyhole views". I note that Mr Sainty was unable to refer the Court to any existing landscaping where this method has been successfully employed in a river environment.

I conclude that the landscaped screen is unlikely to be effective. Without such a screen the visual impact will be unacceptable.

I turn to the issue of flood liability. The experts disagreed on three matters: · the correct hydraulic and hazard classification of the site; · the effect on risk of relocating 50 sites to lot D; · the degree of risk to property.

I do not think that much turns on the classification of lot D. It is common ground that in the 1:100 event the flood level will overtop the cabins. Evacuation will be necessary in lesser events. It is also common ground that there will be adequate warning time and that danger to life is not significant.

As regards the question of relative risk, I accept Mr Bewsher's evidence that the transfer of caravan sites will increase the risk to property. This is because, in theory at least, caravans can be moved to a flood free platform while cabins are fixed and the floodwaters must pass through them. Fixtures such as stoves and refrigerators are likely to be damaged. The cabins themselves are to be built of water resistant materials and are not primary residences. While the transfer of sites would slightly increase the risk to property, I do not think that this risk is unacceptable.

The principal negative feature of lot D is that there is no flood free exit from it. Those who fail to get out early may find refuge on the knoll in the south east corner, but they must stay there for the duration of the flood. In an emergency they will need to be rescued. This reduces lot D's suitability for a caravan park, but not to an extent that flood liability, by itself, constitutes sufficient grounds for refusal of consent.

I turn to the issue of the proposed sewage treatment system. The experts agreed that, if the treatment system achieves the effluent quality that is claimed to be achievable, the effluent will be suitable for absorption on the site. The dispute between the experts is twofold, namely, whether the system includes enough Ecomax cells to achieve the claimed quality, and whether the design of the Ecomax system will in fact achieve the design effluent quality.

While Dr Martens and Mr Harvey-Walker disagreed on the appropriate occupancy rates of the cabins, this is not the main reason for their disagreement with regard to the adequacy of the system. The core of their disagreement is the capacity of the Ecomax cells. In this regard, I do not find Mr Harvey-Walker's evidence persuasive. While he claimed that a detention time of 20 days is not necessary, he did not explain why the Ecomax technical literature suggests 20 days. He has had no direct experience with the system nor has he seen it in operation.

I note, however, that the Ecomax system has been independently tested by a number of reputable bodies. The applicant offers a condition of consent which will require it to monitor the effluent and to pump it out and dispose of it elsewhere if the quality is found to be below standard. The system is capable of enlargement by placing additional cells on lot D. All this suggests that on-site disposal of effluent is possible without damaging the water quality of the river.

I turn to the last issue, namely the impact of the pontoons on the riparian vegetation. It is common ground that the pontoons themselves will not affect the Phragmites growing along the river bank. Any impact will be from the movement of boats using the pontoons. This is not an impact that can be assessed with any accuracy. The only common thread to emerge from the evidence is that if the boats leave the pontoons at high speed, the wave action will retard the growth of the Phragmites. Yet pontoons located beyond the line of riparian vegetation appear to be the most sensitive way to provide for the needs of water skiers, and to minimise the impact on the vegetation.

There was no evidence from the applicant as to why five pontoons are necessary to cater to 50 cabins. It may be that fewer pontoons would reduce any impact on the riparian vegetation. Given the Court's finding on visual impact, there is no need to reach a definite conclusion on this issue.

Dr Lamb and Mr Smith agreed that with screening the visual impact of the rock wall will be acceptable. The difference between them is that Mr Smith thought that the rock wall would also look acceptable without screening, while Dr Lamb believed that without the softening effect of vegetation, the rock wall will appear as a hard edge that is not sympathetic to the natural character of the river.

It is common ground that the river bank is showing some signs of erosion and that Phragmites can co-exist with rock walls. The difference of opinion between Dr Martens and Dr Robertson on the one hand, and Mr Sainty on the other, relates to the cause and extent of erosion and whether revegetation would be a more appropriate way to respond to it.

Mr Sainty was confident that the existing Phragmites reeds will survive and he believed there is a good chance of successful revegetation of the currently bare sections. He has examined the river bed and found there is a shallow shelf up to 8 m from the bank that is conducive to the growth of Phragmites. Mr Druery believed that the rock wall would significantly reduce the impact of wave action on the Phragmites. This suggests that revegetation in front of the rock wall is feasible.

I turn to the issue of whether a rock wall is consistent with the principles of total catchment management. I do not think that Mr Zwicker's evidence on this issue is sufficiently clear or persuasive. The opposition of the Hawkesbury-Nepean Catchment Management Trust to rock walls was based on a general preference for revegetation as a method of bank stabilisation, rather than the assessment of this particular proposal.

I take into account Mr Outhet's letter, which specifically states a preference for a sloping rock rip rap wall, as well as the agreement of the experts that such a wall is preferable to other forms of rock wall. Furthermore, DLWC has no objection to the rock wall design, as indicated in its letter dated 10 September 2001.

In a letter dated 14 January 2000, the Department of Fisheries indicated that it had no objection to the original design of the rock wall, but it was subsequently given an opportunity to comment upon the revised design. In its letter dated 30 August 2001, it stated that it could see the benefit of a sloping bank, but it expressed concern to ensure that the marine vegetation would be protected. The evidence supports the view that the rock wall could be established without significant damage to the marine vegetation, and hence I infer that the Department of Fisheries would raise no objection to it.

I turn to the issue of the need for the rock wall. Given that this is not designated development, the applicant is not required to demonstrate that it has considered alternative methods of stabilising the river bank. Since the applicant's choice is a rock wall and the impact of the wall is acceptable, development consent should be granted.

The Ko Veda caravan park contains 122 sites of which 43 are approved for cabins. This leaves 79 sites on which caravans can be located. The sites are on flood liable land. Even if 50 sites were relocated to lot D, 29 sites would still remain on flood liable land.

The real matter in dispute between the parties is whether or not the 43 sites approved for cabins correspond to the 42 sites subject to condition 17. I prefer Mr Zwicker's evidence in this respect, namely, that the 42 sites subject to condition 17 are "at large", that is, that they do not correspond to the 43 cabin sites. His evidence was to some extent corroborated by a coloured plan from the council's files, and, although there was some dispute as to the authenticity of the colouring, it does support the position that the council takes. Accordingly, the flood risk is reduced by the application of condition 17. It requires that caravans situated on 42 of the remaining 79 sites or on all the 29 remaining sites, as the case may be, should be moved to a flood free platform in time of flooding. That is a desirable outcome, because it is common ground that, if caravans are washed away in floods, they pose a threat to downstream areas.

The applicant submitted that condition 17 should be deleted because the 1987 consent envisaged that 80 caravans would not be moved to a flood free platform. I do not accept that this is the right approach to assessing the modification application. The crucial question is whether the deletion of condition 17 would increase hazard at times of flooding.

During the hearing the applicant proposed an alternative modification of condition 17, to the effect that the area of the flood free storage site might be reduced proportionately as caravans are replaced by cabins. I do not think that this modification is appropriate. It is certainly in conflict with Mr Zwicker's view that any caravan left standing in flood waters is a potential hazard. Moreover, the replacement of caravans by cabins on flood liable land requires council approval. If a variation or deletion of condition 17 is appropriate when caravans are replaced by cabins, it should be considered at the time when the council grants approval.

For the above reasons the condition 17 application is refused.

As required by the Land and Environment Court Rules, the council prepared conditions which it would wish to impose if the Court was minded to grant development consent in respect of the rock wall application. The applicant suggested modifications to the draft conditions.

I have generally adopted the draft conditions as modified, but I comment upon particular matters as follows: Rock wall design : I have referred to the revised cross-section as annexed to drawing 93/311/6 in both condition 1 and condition 2.2.2;

Riparian vegetation: The council sought a condition (originally draft condition 5) which would provide as follows: The retention and protection of the riparian vegetation within the Riverbed, in front of the rockwall structure, at all times. The applicant rejected this condition as repetitive and inflexible. In view of conditions 2.2.4 and 3.2, I agree, and have deleted this draft condition.

Conditions 8 and 9 (formerly draft conditions 9 and 10) : The applicant sought the deletion of these conditions, on the basis that they were superfluous. Whilst conditions 2.2.3 and 2.2.4 respectively implement DLWC's requirement for a riverbank protection plan and a vegetation management plan, it is appropriate, in my opinion, that compliance with such plans be subject to the supervision of the council, and accordingly, I have retained these conditions.

Condition 15 (formerly draft condition 17) : As drafted, this condition would have required additional erosion and sedimentation controls to be installed if required by the council. The applicant opposed this requirement on the basis that it was "open-ended". I agree, and have taken into account that condition 15 requires such controls throughout the construction phase, and accordingly I have deleted this requirement.

Condition 16 (formerly condition 18) : The council sought the insertion of an advisory note which the applicant considered to be inappropriate because it was advisory only. I agree, and I have deleted it.

Supervision : The council sought the imposition of a condition, formerly draft condition 20, in the following terms: The supervision of the rockwall construction by a suitably qualified and experienced professional engineer. The applicant objected to this condition on the ground that "supervision" is a vague concept. I have changed this condition (now condition 18) to require the submission of a compliance certificate under s 109C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 to the effect that the rock wall has been constructed according to the plans and specifications.

Environmental management plan (formerly draft condition 23) : The council sought the insertion of a condition requiring the submission every two years from the date of the consent of an environmental management plan which reviews the performance of the rock wall and its impact upon the riparian vegetation. The applicant objected to such a condition as being unduly onerous. In view of the obligations cast upon the applicant in respect of the protection and rehabilitation of the riparian vegetation by conditions 2.2.4, 2.2.6 and 3.2, I have not imposed this condition.

Ongoing monitoring (formerly draft condition 24) : The council sought the insertion of a condition as follows: The implementation of regular on going monitoring of the rockwall and any impacts upon the riparian vegetation, in front of the rockwall structure. The applicant objected to this condition on the ground of its uncertainty. I agree that it is insufficiently specific, and, in any event, obligations are cast upon the applicant to protect the riparian vegetation by conditions 2.2.4, 2.2.6 and 3.2. Accordingly, I have not imposed this condition.

In accordance with the foregoing, I make the following formal orders: In respect of No 11164 of 2000: The 50 sites application (1) The appeal is dismissed.

(2) Development application for 50 short term sites for moveable dwellings on lot D DP 384298 is determined by the refusal of development consent. In respect of No 11163 of 2000: The rock wall application (1) The appeal is upheld. (2) Development application for construction of a rock wall along approximately 230 m of the bank of the Hawkesbury River on the northern part of lot D DP 384298 is determined by the grant of development consent subject to the conditions in annexure 'A' and the diagram in Annexure 'B'. In respect of No 11162 of 2000: The condition 17 application (1) The appeal is dismissed.

(2) Application under s 96 of the Environmental Planning and Assessment Act 1979 to modify the 1987 development consent relating to the Ko Veda caravan park by deleting condition 17 is determined by the refusal of consent. In respect of No 11164 of 2000, 11163 of 2000 and 11162 of 2000 (1) The exhibits may be returned except Exhibit 3.

The development shall take place in general accordance with the following drawings, except where amended by other conditions of this consent: Drawing No. Dated 93/311/6 (Site plan and original Undated cross-section plan of rockwall as modified by the annexed revised cross-section)

Compliance with the Part 3A Permit (General Terms Approval) requirements issued by the NSW Department of Land and Water Conservation, pursuant to the provisions of Part 3A of the Rivers and Foreshores Improvement Act 1948 as set out below: 2.1 General and Administrative Issues

2.1.1 The work to which these general terms of approval apply is not to commence until such time as a formal permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 has been issued by DLWC. 2.1.2 If, in the opinion of a DLWC officer, any work is being carried out in such a manner that it may damage or detrimentally affect the stream, or damage or interfere in any way with any work, the operation on that section of the stream shall cease immediately upon oral or written direction of such officer.

2.1.3 Work as executed survey plans shall be forwarded to DLWC upon request.

2.1.4 If the permit conditions have been breached, the permit holder shall restore the site to the satisfaction of DLWC. If the necessary works are not completed then the permit holder shall pay a fee prescribed by DLWC for the initial breach inspection and all subsequent breach inspections.

2.1.5 Operations shall be conducted in such a manner as not to cause damage or increase the erosion of adjacent stream banks. The permit holder shall carry out any instructions given by DLWC with a view to preventing damage to the banks.

2.1.6 Any vegetation or other material removed from the area of operations shall be disposed of to an appropriate site where the debris cannot be swept back into the river during a flood.

2.1.7 When the works are to cease, DLWC is to be notified one month in advance of the cessation of the operation.

2.2.1 Work is to be carried out in accordance with drawings and any "plans" required by these conditions, and approved by DLWC and which will accompany the Part 3A Permit.

2.2.2 Drawing 93/311/6 is to be modified generally in accordance with the revised cross-section annexed to drawing No 93/311/6 to show gently sloping rip-rap rock which protects the river bank to a height of approximately 700 mm above the highest tide level. The modifications are to be done in consultation with and with the approval of DLWC.

2.2.3 The rock wall is to be designed and built in accordance with a Riverbank Protection Plan prepared by a suitably qualified consultant who is experienced in river protection/rehabilitation works.

2.2.4 Establishment of a vegetated riparian zone and rehabilitation of the bank of the Hawkesbury River is to be done in accordance with a Vegetation Management Plan, to be prepared in accordance with DLWC "Guidelines for the Preparation of a Vegetation Management Plan" (draft).

2.2.5 All plans are to be finalised in consultation with, and with the approval of DLWC prior to the issue of the Part 3A Permit.

2.2.6 A bank guarantee from any bank licensed pursuant to the Banking Act 1959 (Cth) is to be provided in favour of DLWC, for an amount equal to the cost of undertaking the bank protection and riparian zone rehabilitation in accordance with the plans required to be prepared in conditions 2.2.1 and 2.2.2 and subject to the approval of DLWC. The bank guarantee is to be provided in a form reasonably required by DLWC. The moneys will be held until such time as the rehabilitation works and any specified maintenance period are complete. The sum held may be reduced on application to DLWC, subject to the satisfactory completion of stages of works/rehabilitation. DLWC may at any time, and more than once and without notice to the Permit holder, demand all or part of the moneys available under the bank guarantee, if in its opinion, the Permit holder has failed at any time to meet the performance criteria set out in the Plan.

2.2.7 Soil and erosion control measures for both the construction and maintenance phases of the works are to be in accordance with best management practices as outlined in the NSW Department of Housing publication "Managing Urban Stormwater, Soils and Constructions (1988)" (The Blue Book)

Compliance with the requirements of the NSW Department of Fisheries, pursuant to the provisions of the Fisheries Management Act 1994 as follows: 3.1 A permit to dredge/reclaim is obtained from NSW Fisheries. The permit will be issued on application when council has approved the development with conditions (fee $200.00) and prior to the commencement of the works.

3.2 The mangroves at the site are not to be damaged, cut, harmed or removed. The reeds currently in situ at the site may be transplanted where necessary to enable works to be carried out.

At the completion of the works the reeds are to be re-established in the areas they have been removed from so as to form a continuous path along the riverbank. Aquatic vegetation forms important juvenile fish habitat and passage.

3.3 A minimum of 600 mm at Low Water (0.0 m ZTFD) is maintained between the under side of the pontoons and the substrate.

3.4 The retaining wall is constructed prior to the infill occurring behind it.

3.5 Environmental safeguards (silt curtains) are utilised during the construction.

The submission and approval of a construction certificate by council or Principal Certifying Authority. The construction certificate shall be supported with appropriate plans and other supporting documentation reflecting the requirements of all the conditions of this consent.

The submission to and approval by council of a final site plan and cross-sectional plan and design plan for the rockwall structure, prior to the release of the construction certificate.

The submission to and approval by council of a detailed acid sulfate soil management strategy (prepared by a suitably qualified expert), prior to the release of the construction certificate. This report shall provide specific procedures and mitigative measures, in order to ameliorate any potential disturbance of acid sulfate soils in the riverbed or riverbank during the construction phase of the rockwall structure.

The submission to and approval by council of a detailed riparian vegetation protection strategy (ie prepared by a suitable qualified and experienced ecologist), prior to the release of the construction certificate. This strategy shall provide detailed procedures and mitigation measures, in order to protect the existing riparian vegetation within the riverbed, during the construction phases of the rockwall.

The submission to and approval by council of a Vegetation Management Plan, prior to the release of the construction certificate. This Vegetation Management Plan shall be accompanied by documentary evidence from the DLWC confirming that the Vegetation Management Plan has been prepared in accordance with the requirements of the DLWC. The plans shall also provide specific measures for a vegetated riparian zone along the entire length of the rockwall.

The submission of the final design of the rockwall structure to council in accordance with the Riverbank Protection Plan and the requirements of the DLWC, prior to the release of the construction certificate.

The implementation of the recommended riparian protection procedures and mitigation measures, in order to protect the existing riparian vegetation in front of the riverbank, prior to the commencement of the construction phase.

The implementation of the acid sulfate soil management and mitigative measures, in order to ameliorate any potential disturbance of acid sulfate soils in the riverbed, prior to the commencement of the construction phase.

Erosion and sedimentation control devices are to be provided in accordance with council's "Works Specification - Subdivisions Developments June 1997" that include the proposed construction works.

The submission to council of a certificate prepared by a suitably qualified engineer that confirms all erosion and sedimentation control devices have been satisfactorily installed, prior to the commencement of the construction phase.

The construction works shall comply with the Australian Standard 2436-1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites" and any other statutory requirements as specified by the NSW Environment Protection Authority.

Erosion and sedimentation control devices shall be in place, prior to the commencement of the site works and maintained throughout the construction phase. The controls shall be in accordance with the details approved by council.

The construction phases of the development shall be restricted to the following work hours:- 7.30 am to 5.00 pm Mondays to Fridays, 8.00 am to 4.00 pm Saturdays, with no work being carried out on Sundays or public holidays.

The use of cranes shall be restricted to the following hours of operation only:- 8.00 am to 5.00 pm Mondays to Fridays; 8.00 am to 4.00 pm Saturdays with no work to take place on Sundays or public holidays. These restrictions also apply to the repair and/or maintenance of cranes. Safety inspections are permitted from 7.45 am Mondays to Saturdays.

The submission of a compliance certificate to the effect that the work has been completed according to the plans and specifications.

The completion of all works detailed in the approved Vegetation Management Plan with three months from the completion of the rockwall structure.

The submission of Works-as-Executed drawings to council, which detail all completed civil works. The Works-as-Executed plans shall be certified by a registered surveyor indicating that the survey is a true and accurate record of the works that have been constructed in accordance with the approved plans within three months from the completion date of the works.

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.

CITATION : Denis Gelle Pty Ltd and Integrated Site Design Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 229 No 11162 of 2000 and No 11163 of 2000 APPLICANT Denis Gelle Pty Ltd

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