Eastlakes Golf Club v Botany Bay City Council

Eastlakes Golf Club v Botany Bay City Council - [2006] NSWLEC 343 - NSWLEC 1987 case summary — Zoe

[11]

3 The golf club trades as a public golf course - that is, it has members who have certain rights but the golf course is also open to members of the general public who may, on a casual basis, play a round of golf by payment of a single fee to the golf club for this purpose. On the evidence before me, ~ 50,000 rounds of golf per annum are played on the course - thus representing ~ 100,000 golfer crossings of the road (whether on foot or in a golf buggy) per annum - as each player needs to cross the road twice to play a complete round. 4 Golfers and staff operating course service vehicles cross between the northern and southern portions of the golf course, in both directions, at two informal, unmarked, unsignposted and uncontrolled crossing points. The first, to the east of the bridge site, is used by pedestrian and golf cart conveyed golfers and staff operating course service vehicles whilst the second, some distance to the west of the bridge site, is only used by pedestrian and golf cart conveyed golfers. 5 The total number of crossings (including service vehicles) was said by Mr Paterson to be ~ 135,000 per annum. 6 I do not understand the council contests, as to the broad position outlined above, the number of vehicle movements along the road or the total number of crossings by golfers and staff. 7 The golf club proposes the bridge because of the safety concerns that the club committee and management have about the inherent conflict between golfers and course service vehicles travelling along north/south routes and the high volume of vehicle traffic utilising the road during daylight hours. 8 Pedestrian and golf cart conveyed golfers will use the bridge. In addition, course maintenance vehicles such as tractors and mowers will also utilise the bridge. 9 Although the bridge will primarily be for the use of patrons and staff of the golf course and will only be available for use by the general public during daylight hours, some public use will be by casual joggers, persons exercising their dog and the like. Security gates are proposed to each end of the bridge and these would be locked outside of golf course hours. At night, these security gates will prevent access to the bridge.

[14]

16 The bridge is to be constructed from single reinforced and pre-stressed concrete span with steel balustrades and steel support structures to accommodate advertising signage. Services are to be incorporated in the lower portion of the bridge below the deck structure. 17 The bridge will also require safety screens which prevent objects being thrown from the bridge at vehicles passing below. These screens would need to comply with RTA Technical Direction TD 2002/RS02 (RTA letter of 29 April 2005). 18 Works are proposed to occur both within the road reserve and on both the northern and southern portions of the golf course. 19 A ramp is proposed to connect the deck of the bridge to the northern section of the golf course. This ramp would extend some distance to the north-east of the northern end of the deck of the bridge. Part of the ramp would be formed on the top of a substantial earth mound and part would be an elevated structure. 20 In addition, a Y-shaped pathway is proposed to connect the deck of the bridge to the southern section of the golf course. These pathways will each disturb bushland on the northern slopes of the high point. 21 Fences are to be erected along each side of the road to prevent any continued at grade crossing of the road. No gates are to be provided as any vehicles which need to access the southern portion of the golf course and which are too heavy to use the bridge have an alternative (somewhat longer) route via public roads to do so. 22 A critical element of the application is the proposal for erection of two illuminated signage panels to the sides of the bridge - with one panel facing east and one facing west. These signs are critical as their erection and the advertising revenue to flow from their use is to provide the essential financial underpinning for the bridge's construction. 23 The company which is proposed to have a long-term lease on the signage rights, Outdoor Plus Pty Limited (the advertising company), is to fund construction of the bridge as part of its arrangements with the club. Although details of the proposed arrangements between the golf club and the advertising company were provided to me, it is not necessary to explore the details in this decision. 24 The signage panels are proposed each to be 12.6 m wide and 3.4 m high - giving a display area of 42.84 sq m for each sign. Mr Tyquin, the Managing Director of the advertising company, gave evidence concerning these proposed signs and how they rendered the proposal viable for his company. The dimensions of the proposed signs and their resultant display area renders them, according to Mr Tyquin, "super sized signs" which provide a particular rate of return which makes the proposal viable. It was his evidence that smaller signs would not generate sufficient return to do so. 25 The signage is proposed to be positioned ~ 5.5 m above the road and will extend ~ 8.9 m above the road and 1.5 m above the bridge deck level. The signage panels are to be illuminated by directional metal halide lamps integrated into the maintenance platform for each panel.

[15]

26 The immediate visual context of the bridge site is characterised by the fairways and tees of the golf course (together with the bushland of the local high point), the wetlands and the dual carriageways of the road. The nearest built developments to the bridge site are residential dwellings on Bay Street, Wentworth Avenue, Dailey Avenue and Lang Avenue in Pagewood. 27 I have had the assistance of three Court-appointed expert witnesses in these proceedings - Mr Ingham on town planning issues; Ms Plate on heritage matters relating to the Botany Wetlands and the remnants of Eastern Suburbs Banksia Scrub (ESBS); and Mr Introna on the impacts on ESBS and whether a species impact statement was required. 28 On the first morning of the hearing, I had the opportunity to inspect the site of the proposed bridge in company with the legal representatives and advisors to the parties and with the Court-appointed experts. The issues 29 In summary, the issues requiring to be determined are: o Is a species impact statement required as a result of possible impacts on the remnants of ESBS? o Do I need to consider what the council says are alternative options to a bridge? o Is a bridge acceptable at the proposed location? o Are the proposed bridge and its pathways acceptable at the proposed location? o For the sign heights above the bridge deck, should an objection be sustained pursuant to State Environmental Planning Policy 1 (SEPP 1) to compliance with a development standard contained in State Environmental Planning Policy 64 (SEPP 64)? and o If the SEPP 1 objection is sustained, are the proposed advertising signage structures acceptable on a merit assessment? The relevant planning frameworks for consideration of the bridge and the signage 30 The proposal for the bridge falls to be considered against the council's planning requirements. However, the signage falls to be considered pursuant to the provisions of SEPP 64 (by virtue of the provisions of cls 5 and 7 of SEPP 64). Only if there are matters raised by the council's planning instruments that are in addition to and not inconsistent with the requirements of SEPP 64 are such matters brought into play.

[31]

The ultimate outcome of the '8 part test' should be that developments are undertaken in an environmentally sensitive manner and that appropriate measures are taken to minimise adverse impacts on threatened species, populations or communities (NPWS 1996). 49 Mr Introna expressed the opinion, at p 20 of his preliminary report: I am of the opinion that without the knowledge of the location of the path through the ESBS then an SIS would be required so that a more detailed evaluation could be carried out (which would likely include the path location). Such an evaluation would have identified the potential direct and indirect impacts as well as appropriate amelioration measures in more detail. Before reaching a final conclusion about the results of the '8 part test', consideration must be given to the proposed amelioration measures. Often, despite the potential local effects on a threatened species, population or community, amelioration measures that include regeneration or offsetting may result in a net overall benefit or gain for a threatened species, population or community. 50 I interpolate here that the final locations of the paths on the southern end of the bridge were set during the hearing so that this defect identified by Mr Introna was cured. Mr Introna was satisfied with proposed final locations of those paths. 51 Mr Introna then set out the Total Earth Care report's proposed "ameliorative actions". These are: - Maintain surrounding scrub vegetation. - Revegetate disturbed areas. - Enforce weed control measures during construction. - Initiate bush regeneration program throughout retained bushland following construction. - Install silt fences, geotextile wind breaks and brush-matting along contour below path and revegetate disturbed ground post-construction. - Install chain mesh exclusion fencing along boundary of development areas; rehabilitate following removal of fence. - Restrict path construction to minimum width possible (2m). - Install exclusion fencing above and below path. - Revegetation margins of path with locally indigenous FSBS species. - Manage ESBS and other affected vegetation according to Golf Course Management Plan (Kate Low and Associates 2005) (includes fire, rabbit, weed and vegetation management actions). - Prepare a landscape plan to show areas proposed for planting, erosion control and soil stabilisation. - Use felled shrubs or trees as wind break, brush matting or seed source and in rehabilitation work. - Retain native trees as far as possible. - Implement dedicated weed control programme within area to be affected. - Located material stockpile and vehicle parking areas on already cleared and disturbed land at least 5m from vegetation to be retained. 52 Mr Introna commented on these measures as follows: These measures help ameliorate the potential adverse effects on ESBS by providing outcomes that would result in the control of threatening process such as weed invasion and erosion and accidental clearance of ESBS. They need to be taken into account when determining whether or not there is likely to be a significant effect on ESBS.

[34]

60 In Smyth v Nambucca Shire Council & Anor (1999) 105 LGERA 65, Lloyd J said, at p 69: I accept the submission of Mr Davison that this question can only be answered by reference to the development which is proposed, which in turn requires a consideration of any ameliorative measures proposed as part of that development. That this must be so is clear from the reference to whether it is the " development " which is likely to significantly affect threatened species, populations or ecological communities, or their habitats. 61 His Honour also said, at p 70: It seems that the Commissioner was led into error by, at least partly, the omission from s 5A of any express reference to any proposal to ameliorate the impact of a proposed development. It seems to me that the answer to this is that there is no need for there to be any express reference to ameliorative measures in that section. The terms of the section make it plain that the matters for consideration necessarily include the impact of a proposed development and any associated ameliorative measures. 62 These decisions are not inconsistent as, in the latter case, it is clear that the ameliorative measures formed part of the development application whilst, in the former, they would have required imposition by the consent authority. 63 In this instance, the applicant has adopted the ameliorative measures proposed by Total Earth Care and those proposed by Mr Introna. These now form part of the development application falling to be determined. 64 I am, therefore satisfied, relying on the approach in Smythe, that, prima facie, no species impact statement is required. 65 However, Mr Hale also put that: For the reasons which are set out in more detail below, the ameliorative actions referred to can only be enforced by well drafted and specific conditions of consent. The ameliorative actions are general and lack specificity. They are not, for example, contained in any plan. The assumed success of these ameliorative actions ought not be a basis for determining whether or not a species impact statement is required under the EP&A Act. An SIS will more rigorously assess the measures which ought to be imposed if consent is to be granted. 66 It is clear from a reading of the ameliorative measures proposed by Total Earth Care and those proposed by Mr Introna that a number of them are, in fact, couched in general terms and lack specificity. 67 However, I am satisfied that they are not incapable of being couched in more particular and specific terms which would render them able to be implemented to give the net benefit and positive outcome for ESBS postulated by Mr Introna. Indeed, it is reasonable to assume that Mr Introna so believed or he would not have reached the conclusions he had expressed. 68 I am therefore satisfied that, as this lack of specificity is a curable impediment to approval, consistent with the recent approach taken by the Court in Class 1 appeals, the appropriate course to follow will be to have Mr Introna produce a detailed plan of management to implement all the ameliorative measures to the satisfaction of the Court. Only if the applicant is unwilling or unable to have Mr Introna do this will the application then fail the s 78A(8)(b) test as a species impact statement would then become required. Alternatives to a bridge 69 The golf club does not resile from the fact that the proposed bridge is the only viable proposition for a new, safer road crossing, as far as the golf club is concerned, because of the inability of the golf club to finance any possible alternative. The commercial proposition for advertising on the proposed bridge structure is what makes the bridge financially viable for the golf club.

[44]

85 In this regard, there was no structural objection to the main structure. Although there was considerable evidence about the merit of the ancillary structures, that evidence was not in opposition to their existence (but they were subject to a deal of substantial scrutiny as to their detailed merits). The detailed merits of the southern tracks concerning impacts on ESBS have been discussed in the consideration above of the need for a species impact statement and do not need to be canvassed further. However, there were other possible impacts of the construction of the southern tracks which need to be considered. 86 Ms Plate described the general setting in the following terms: "………..the Eastlake Golf Course and The Lakes Golf Course adjoining to the northwest are made up of wide, open, grassy spaces dotted with individually planted trees and rows of planted pine trees and feature major water bodies of Botany Wetlands. This relatively natural setting can be appreciated by users of the golf course and glimpsed by occupants of vehicles on Wentworth Avenue through the roadside plantings of locally indigenous species growing within the verges." 87 At the outset of consideration of the issues associated with the bridge and its access structures, I also note the general comment made by Ms Plate at the commencement of the summary of conclusions in her revised statement of evidence. This was: The proposal would facilitate use and appreciation of the Botany wetlands by users of the golf course. 88 As earlier noted, with respect to unzoned land, the LEP relevantly provides, in cl 19: (2) Development for any purpose of any land to which this clause applies may be carried out with the consent of the Council provided the Council is of the opinion that the development: (a) is compatible with the nature of development permissible on neighbouring land and those development standards applicable to development on neighbourhood land, and (b) is consistent with the objectives of this plan and the objectives of the zoning applying to neighbouring land.

[45]

89 I am satisfied that, in the present factual context, compatible with [as used in cl 19(2)(a) of the LEP] is more expansive than and thus not the same as identical as or consistent with (see Clarke JA in Coffs Harbour Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 192 and Bignold J in Dem Gillespies v Warringah Council 124 LGERA 147; [2002] NSWLEC 224 at para 74). 90 ………."the nature of development permissible on neighbouring land and those development standards applicable to development on neighbourhood land" self evidently includes the golf course. In this instance, I am satisfied that the concept of compatible with the permitted and actual use of the land at each end of the bridge site as part of the golf course encompasses the concept of supporting or providing assistance with the operation of the golf course. 91 I have no doubt that, in the factual matrix here present, that a bridge falls squarely within concept of supporting or providing assistance with the operation of the golf course and therefore satisfies the first element of cl 19(2)(a) of the LEP. 92 There is nothing associated with the elements of the proposed bridge within the unzoned land that would appear to be contrary to those development standards applicable to development on neighbourhood land - "development standards" being a concept generally associated with some form of numerical control requiring to be satisfied. I have no submissions or evidence that any such standard from the LEP or any other relevant planning instrument, Australian Standard or other applicable code or policy is breached by the proposed bridge structure. 93 Indeed, the criticism of the proposed design is that, as a result of the type of structure selected, its very solidity is unacceptable. This is not a criticism, as I understand it, of breach of any development standard for a bridge but applies to the matters required to be addressed pursuant to cl 19(2)(b) of the LEP. 94 In this context, I also have no submissions or evidence on what distinction (if any) should be drawn between the use of the words neighbouring land and neighbourhood land in cl 19(2)(a) of the LEP. As a consequence, although the latter might be of wider compass than the former, I do not think anything turns on this. 95 I am thus satisfied that nothing arising out of the second element of cl 19(2)(a) of the LEP stands against the possibility of some bridge at the proposed site. 96 I therefore turn to address the provisions of cl 19(2)(b) of the LEP. By this provision, the LEP requires me to consider whether the bridge at the proposed site is consistent with the objectives of this plan and the objectives of the zoning applying to neighbouring land. 97 At para 74 in Gillespies, after considering the scope of the word compatible, Bignold J continued: However, the primary dictionary meaning of " compatible " (the Macquarie Dictionary : capable of existing together in harmony) is in my judgment, both apt and applicable to the interpretation of the word " consistent " in its context in cl 12(3)(b) of the LEP.

[69]

137 The oral evidence given, relevantly, confirmed the positions outlined above from the written material. 138 Finally, for the main bridge structure, I turn to consider the relevant provisions of DCP 40. These are set out at (40) to (42) above. Mr Ingham said, in this regard: DCP No.40 is a document which deals with the environmental protection of wetlands. These wetlands, in part, are adjacent to Wentworth Avenue and relatively close to the proposed pedestrian bridge. It will certainly be possible to view the pedestrian bridge from areas adjacent to the wetlands with the bridge forming a prominent structure in the visual context of the wetlands. Furthermore, several controls of the DCP relate to visual impacts on the wetland areas and also to the protection of Eastern Suburbs Banksia Scrub. It is my opinion that the proposed pedestrian bridge would not be consistent with the intentions and objectives of DCP No.40. 139 As can be seen from the wording of DCP 40's general objectives in Part 1.4 and the social and cultural relevant objective in Part 3.4 (coupled with the relevant controls in this latter Part) they do not add matters, in any specificity [other than the requirements for natural and non-reflective materials], which are not already comprehended by the other matters set out in this broader discussion. Therefore, although in the general context, a more prescriptive DCP might have required a different sequence to consideration of issues (in order that the DCP might be a fundamental element in, or a focal point to, my decision-making process), I do not consider that the approach I have taken ignores or does not, in fact, give proper and significant weight to the relevant matters in DCP 40. 140 However, to address, first, the question of whether a bridge is acceptable, I have concluded that the general tenor of Mr Blyth's evidence is to be preferred to that of Mr Ingham and Ms Plate. As a consequence, I have concluded that a bridge is acceptable at the proposed location. 141 I have reached this conclusion after considering the sharply differentiated positions outlined above; consideration of the information contained in the two large aerial photographs in evidence and from what I was shown and saw on the view. 142 I am satisfied that I must test these issues by considering from what locations a bridge might be seen, to any extent more than, perhaps, fleeting glimpses, and what the impact on the appreciation of the wetlands would be from an observer at any such location. To put it at the position most difficult for the applicant, I start by assuming that such an observer is aware of the heritage significance of the Botany wetlands. 143 For the purposes of this assessment, I am satisfied that a bridge would be capable of being so seen from the following locations: o From a vehicle travelling westward along Wentworth Avenue; o From a vehicle travelling eastward along Wentworth Avenue; o From The Lakes golf course (being from a green and two fairways to the north-west of the immediate element of the Botany Wetlands near the present western at grade crossing); and o From the fairways of the golf course itself. 144 For the council to succeed, I consider that I would need to be satisfied that the visual experience of the wetlands and their contextual setting would need to be effected, in a significantly adverse fashion, from at least one of these locations.

[70]

145 As to the general impact on a viewer (assumed to be a passenger and thus free to observe without the necessity of concentration on driving responsibilities) from a vehicle travelling westward along Wentworth Avenue, the curve approaching the proposed bridge site and the vegetation on the left of the road will limit the period during which the bridge will be in view. It is unlikely that such a viewer will see much of the wetlands until after they have passed the bridge site and come abreast the wetlands immediately to both sides of the road. This is because the roadside vegetation will limit viewing to anything other than glimpses through its breaks. 146 After they pass any bridge, it ceases to be part of their immediate contextual reference for the wetlands. 147 The consequence of the foregoing, in my view, is that this westward travelling, wetland informed passenger would not have such visual appreciation of the wetlands, as they would have during such transit, impacted in any appreciably negative fashion. 148 As to the general impact on a viewer (similarly assumed to be a passenger and thus free to observe without the necessity of concentration on driving responsibilities) from a vehicle travelling eastward along Wentworth Avenue, they will see the bridge at a greater separation. This viewer will have arrived at a viewing point by vehicle travelling generally westward along Wentworth Ave or in one having debouched from Southern Cross Drive, turning left into Wentworth Ave. Any difference in view appreciation as a consequence of the mode of arrival would be, in my assessment, de minimus. 149 This hypothetical, informed viewer will see a bridge at several hundred metres distance. The more immediate views to the wetlands on either side of the road will be partially obscured by the roadside vegetation which will limit oblique viewing. For this viewer to obtain a reasonable and properly informed appreciation of the wetlands, I am satisfied that they would need to turn to observe directly to the north or south to look along the reaches of the portion of the wetlands opened up to them through the trees. Doing so, of course, would render the sight of a bridge marginal and peripheral at most. 150 Having observed the wetlands in this fashion, this hypothetical, informed viewer might turn to look toward the east and will see a bridge - however, it will no longer be in the context of the wetlands. If there were some fleeting adverse contextual impression, it would certainly not likely to be sufficient (absent some adverse impact from the particular design of the bridge), in itself, to warrant refusal of an appropriate bridge structure. 151 As to the general impact on viewers from The Lakes golf course, a bridge will be seen against the backdrop of the local high point and may be screened to some extent - depending on the viewing location - by vegetation both on their own course and on the applicant's course. The direction of play on the south-playing fairway is oblique and not directly toward a bridge at the proposed site. The direction of play on the north-playing fairway is both oblique and away from a bridge at the proposed site. 152 However, these golfers will be the persons most likely to have, after the golf course's own players, some sustained view of a bridge across the wetlands. In this context, a well-designed structure (which added interest to the panorama and was set against a natural backdrop including the local high point) would not provide an adverse contextual appreciation of the wetlands. Indeed, if of an interesting design, a bridge might well draw their eyes in a positive fashion - thus enhancing an appreciation of the interlying wetlands. I do not consider that a well-designed bridge structure would cause unacceptable impacts, in this planning context, from this vantage point. 153 As to the general impact on viewers from the fairways of the golf course itself, Ms Plate concluded: The proposal would facilitate use and appreciation of the Botany wetlands by users of the golf course. 154 In this regard, I accept her conclusion - indeed, as discussed further below in the context of the proposed signage, those using any bridge linking the two portions of the golf course will obtain a significantly enhanced appreciation of the wetlands and their setting. As a consequence, far from being a potential negative, this aspect of the bridge is a positive benefit in promoting understanding or appreciation of the values of the wetlands. 155 Being satisfied that an observer aware of the significance of the Botany wetlands would not find any significant adverse impact, aesthetically or in any heritage context, it follows that no observer who was less well informed would find any adverse impact. As well, to the extent that there might be some marginal adverse impact, in my assessment, this is more than offset by the positive benefits of the appreciation of the wetlands in their context by future users of a bridge. 156 For completeness, I do not consider that any significant visual impact, in any context of the visual catchment of the wetlands or otherwise, arises from the rear of any property in Bay Street (to the east of the proposed bridge site) and I was certainly not asked to inspect the outlook from the rear on any of these properties. No resident in this vicinity made any objection to the proposal. 157 Finally, although not specifically put as an entirely abstract context absent any possible viewer, as there is clearly no physical impact on the wetlands from a properly and competently constructed bridge and ancillary structure nor any location from which there is an observable significant adverse impact (and, for one group of observers, a significantly enhanced appreciation of the wetlands), I am satisfied that there cannot be some theoretical adverse impact on the heritage or aesthetic values of the wetlands. 158 It therefore follows from the foregoing that I am satisfied that, for any observer who is aware of the heritage significance of the Botany wetlands, some appropriately minimally intrusive bridge at the proposed site would not adversely impact, to any relevant degree, on the heritage significance (and the appreciation of that significance) of the Botany wetlands.

[75]

The role of "the public interest" (s 79C(1)(e) of the Act) in this matter 164 Having reached the conclusions set out above, I turn to consider whether the provisions of s 79C(1)(e) - requiring me to have regard to the public interest - warrants me setting aside the conclusion about the specific proposal. 165 The question of whether or not the construction of the bridge would provide public benefits was debated during the hearing. 166 For example, Mr Ingham said, in his written evidence: The proposed bridge is not a public pedestrian bridge and is not required to meet the needs of the general community. It is a bridge which is proposed to meet the needs only of the Eastlake Golf Club and its patrons and staff and cannot therefore be said to fulfil a public purpose. 167 Essentially, the position put by Mr Hale was that the council regarded: - the bridge as entirely providing private benefits to the golf club and its patrons - whether members or paying players from the general populace or the club's staff. the limited use that might be made by the bridge by casual joggers or persons exercising their dog and the like was not, in the council's view, sufficient to alter the characterisation of these benefits; and - the safety issues raised by the club did not warrant setting aside the other planning matters raised by the council. 168 Mr Hale's written submissions summarised the council's position on the first of these matters as being: 22. …………………………………….. Further, rather than being an issue of public interest it is primarily an issue of private interest, namely the interest of members of the application and others playing golf at the Club. 169 I am satisfied that this proposition is misconceived. 170 In Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195; NSWCA 289, Mason P said, at para 81: In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235).

[128]

Conclusion 250 In summary, I have reached the following conclusions: 1. No species impact statement is required provided the applicant commissions satisfactory detailed material from Mr Introna concerning ameliorative measures for the ESBS; 2. I do not need to consider alternatives to a bridge as, in the relevant context, there are none; 3. A bridge at the proposed site is acceptable: 4. The present proposed bridge is not an acceptable design; 5. A bridge of a design of the more open span type (of which a photograph was in evidence of a bridge above the M7 Motorway) would be acceptable at the proposed location; 6. Advertising on a bridge is permitted at this location as a consequence of cl 24(1) of SEPP 64; 7. The SEPP 1 objection to compliance with cl 24(2)(b)(i) of SEPP 64 should be sustained; 8. Assessment of the proposed advertising panels pursuant to the merit assessment criteria of SEPP 64 finds them to be acceptable if erected on a bridge of a design of the more open span type; and 9. The public interest in eliminating the potentially fatal consequences of the inherent conflict between golfers and course service vehicles travelling along north/south routes and the high volume of vehicle traffic utilising Wentworth Avenue, during daylight hours, acts to render it in the public interest to permit the golf club the opportunity to consider whether it wishes to amend the application to enable consent being given to a bridge of an acceptable design. Directions 251 It follows from these conclusions that I am not in a position to issue final orders of the Court in this matter. I therefore give the following directions: 1. The applicant has until the close of business on Thursday 31 August 2006 to file and serve a written undertaking that all future costs and expenses of the council (as agreed or assessed) and all future costs of Mr Introna's involvement are to be borne by the applicant; 2. The applicant has until the close of business on Wednesday 6 September 2006 to file and serve revised plans for a bridge consistent with this decision; 3. The applicant has until the close of business on Wednesday 20 September 2006 to file and serve a detailed management plan for the ESBS prepared by Mr Introna - implementation of which plan will give effect to the ameliorative measures set out in paragraphs (51) and (54) of this judgment; 4. The respondent is to file and serve revised conditions of consent by the close of business on Wednesday 20 September 2006; 5. If the conditions of consent are filed electronically by e-Court, a separate Court communication is to be sent advising that these have been filed; 6. The respondent is to file and serve any report on the structural adequacy of the revised plans by the close of business on Wednesday 20 September 2006; 7. The applicant has until the close of business on Wednesday 27 September 2006 to file and serve any report in response to any report of the respondent pursuant to (6); 8. The matter set down for mention before me at 9.00 am on Thursday 28 September 2006, 9. Liberty to re-list before me on two days notice if any matters require further consideration arising out of these directions; and 10. If the applicant fails to comply with direction (1) or indicates to the respondent and the Court, prior to Wednesday 6 September 2006, that it does not wish to file revised plans, the appeal will dismissed without further hearing and Development Application 05/123 for the construction of a pedestrian and service vehicle bridge to span Wentworth Avenue, Pagewood, will be determined by the refusal of development consent.

At a glance

Court

Decision date

Source

Judgment (129 paragraphs)

Parties

Cases Cited (7)

Cited By (1)