Dossor v Ballina Shire Council

Dossor v Ballina Shire Council - [2001] NSWLEC 173 - NSWLEC 2001 case summary — Zoe

[35]

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

[193]

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

At a glance

Court

Decision date

Before

Source

Judgment (196 paragraphs)

Parties

Cases Cited (2)