Eniflat Pty Ltd; Karlos v Tweed Shire Council - [2019] NSWLEC 150 - NSWLEC 2019 case summary — Zoe

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Eniflat Pty Ltd; Karlos v Tweed Shire Council

[2019] NSWLEC 150

Land and Environment Court (NSW)|2019-10-18|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-10-18

Before

Pain J

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

SOLICITORS: Mills Oakley (Applicants) Marsdens (Respondent) File Number(s): 18/384157, 18/384172, 19/32127

[2]

Judgment

These proceedings encompass three Class 1 appeals under the Environmental Planning and Assessment Act 1979 (EPA Act) and concern the future of an existing water bottling facility near Bilambil village in northern NSW. Two appeals are brought under s 8.7(1) of the EPA Act by Mr Larry Karlos (hereafter the Applicant) against Tweed Shire Council's (the Council) deemed refusal of two development applications (DA). DA 18/0910 (DA 1) lodged 31 October 2018 seeks consent for the use of Lot 1 DP 735658 477 Urliup Road Bilambil (the Site) for a water bottling facility for the purposes of water extraction up to 28.5 ML per year. DA 18/1044 (DA 2) lodged 18 December 2018 is in similar terms but seeks the extraction of up to 59.995 ML of water per year. A third appeal is by Eniflat Pty Ltd (Eniflat) under s 8.18 of the EPA Act against the Council's development control order issued 12 December 2018 (the Order) pursuant to s 9.34 of the EPA Act. The Order limits the level of water extraction on the Site and requires demolition of tanks and pipes. Eniflat owns the Site on which Mr Larry Karlos operates the water bottling business which is presently operating on the Site. Mr Larry Karlos has effective control of Eniflat.
On 21 December 2018 the Court ordered that the operation of the Order given by the Council to Eniflat be stayed until the disposal of these proceedings. All proceedings were ordered to be heard together. Most but not all the evidence relied on informs all three appeals. Some evidence tendered by the Applicant and Eniflat in the development control order appeal (Order appeal) concerns the exercise of discretion by the Court in that appeal.

[3]

Environmental Planning and Assessment Act 1979

The EPA Act relevantly provides: Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. … Part 8 Reviews and appeals … Division 8.3 Appeals - development consents … 8.7 Appeal by applicant - applications for development consent (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. … Division 8.5 Appeals - development control orders 8.18 Appeals concerning orders (1) A person who is given a development control order may appeal to the Court against the order. (2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises). (3) The appeal may be made only: (a) within 28 days after the development control order is given to the person, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person. (4) On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. Part 9 Implementation and enforcement … Division 9.3 Development control orders 9.34 Orders that may be given (1) The development control orders that may be given under this Act are as follows: (a) general orders in accordance with the table to Part 1 of Schedule 5 … (3) A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate). … Schedule 5 Development control orders Part 1 General orders Column 1 Column 2 Column 3 To do what? When? To whom Premises are being used: Stop Use Order • for a prohibited purpose, or • The owner of premises or building 1 To stop using premises or a building • for a purpose for which a planning approval is required but has not been obtained, or • The person using the premises or building Not to conduct or to stop conducting an activity on the premises • in contravention of a planning approval. ... Demolish Works Order A building: 3 To demolish or remove a building • requiring a planning approval is erected without approval, or Owner of building or, ... • ...

[5]

State Environmental Planning Policy (Rural Lands) 2008

The State Environmental Planning Policy (Rural Lands) 2008 (Rural Lands SEPP) now repealed applies by operation of the savings provision in cl 9 of the State Environmental Planning Policy (Primary Production and Rural Development) 2019 and provides: Part 1 Preliminary … 2 Aims of Policy: The aims of this Policy are as follows: (a) to facilitate the orderly and economic use and development of rural lands for rural and related purposes, (b) to identify the Rural Planning Principles and the Rural Subdivision Principles so as to assist in the proper management, development and protection of rural lands for the purpose of promoting the social, economic and environmental welfare of the State, (c) to implement measures designed to reduce land use conflicts, … Part 2 Rural Planning Principles 7 Rural Planning Principles The Rural Planning Principles are as follows: (a) the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas, (b) recognition of the importance of rural lands and agriculture and the changing nature of agriculture and of trends, demands and issues in agriculture in the area, region or State, (c) recognition of the significance of rural land uses to the State and rural communities, including the social and economic benefits of rural land use and development, (d) in planning for rural lands, to balance the social, economic and environmental interests of the community, (e) the identification and protection of natural resources, having regard to maintaining biodiversity, the protection of native vegetation, the importance of water resources and avoiding constrained land, (f) the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities, (g) the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing, (h) ensuring consistency with any applicable regional strategy of the Department of Planning or any applicable local strategy endorsed by the Director-General.

[6]

Tweed Local Environmental Plan 2014

Relevant provisions of the TLEP under which development consent may be granted provide: Part 1 Preliminary … 1.2 Aims of Plan … (2) The particular aims of this Plan are as follows: (a) to give effect to the desired outcomes, strategic principles, policies and actions contained in the Council's adopted strategic planning documents, including, but not limited to, consistency with local indigenous cultural values, and the national and international significance of the Tweed Caldera, (b) to encourage a sustainable local economy and small business, employment, agriculture, affordable housing, recreational, arts, social, cultural, tourism and sustainable industry opportunities appropriate to Tweed, (c) to promote the responsible sustainable management and conservation of Tweed's natural and environmentally sensitive areas and waterways, visual amenity and scenic routes, built environment, and cultural heritage, (d) to promote development that is consistent with the principles of ecologically sustainable development and to implement appropriate action on climate change, … (f) to promote the sustainable use of natural resources and facilitate the transition from fossil fuels to renewable energy, (g) to conserve or enhance the biological diversity, scenic quality and geological and ecological integrity of Tweed, … Part 2 Permitted or prohibited development … 2.3 Zone objectives and land Use Table … (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. … Land Use Table … Zone RU2 Rural Landscape 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land. 2 Permitted without consent Environmental facilities; Environmental protection works; Extensive agriculture; Home occupations; Intensive plant agriculture 3 Permitted with consent Airstrips; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Educational establishments; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Garden centres; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Hostels; Industrial retail outlets; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Jetties; Kiosks; Landscaping material supplies; Markets; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers' dwellings; Signage; Timber yards; Transport depots; Truck depots; Turf farming; Veterinary hospitals; Water recreation structures; Water supply systems; Wharf or boating facilities 4 Prohibited Any development not specified in item 2 or 3 … Part 7 Additional local provisions … 7.10 Essential services Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, … (e) suitable vehicular access. … 7.15 Water bottling facilities in Zone RU2 Rural Landscape (1) Despite any other provision of this Plan, development may be carried out with development consent for the purposes of a water bottling facility on land in Zone RU2 Rural Landscape if the consent authority is satisfied that development will not have an adverse impact on natural water systems or the potential agricultural use of the land. (2) Despite any other provision of this Plan, development may be carried out with development consent for the construction of a pipe or similar structure on any land for the purposes of conveying groundwater to a water bottling facility. (3) In this clause: water bottling facility means a building or place at which groundwater from land in Zone RU2 Rural Landscape is extracted, handled, treated, processed, stored or packed for commercial purposes. …

[9]

Summary of evidence

The following exhibits were tendered by the Applicant and Eniflat: 1. Exhibit A - class 1 application (Order appeal); 2. Exhibit B - class 1 application (DA 1 appeal); 3. Exhibit C - class 1 application (DA 2 appeal); 4. Exhibit D - SOFAC in reply; 5. Exhibit E - statement of commitment by Mr Larry Karlos dated 15 April 2019; 6. Exhibit F - bundle of documents; 7. Exhibit G - Applicant's supplementary bundle of documents; 8. Exhibit H - "Water Sharing Plan for the North Coast Fractured and Porous Rock Groundwater Sources 2016" (Water Sharing Plan); 9. Exhibit J - exhibit "MK-1" to the affidavit of Mr Matthew Karlos dated 23 March 2019; 10. Exhibit K - plan of bores at Site with corresponding water access licence and water approval numbers; 11. Exhibit L - amended notice of supporters; 12. Exhibit AA - conditions of consent in reply DA 1; 13. Exhibit BB - conditions of consent in reply DA 2; 14. Exhibit CC - acoustics report by Mr Hill; 15. Exhibit DD - addendum joint report of traffic and civil engineers (superseded by Ex 17); 16. Exhibit EE - conditions of purported bore licence 30BL207356 for bore 5; 17. Exhibit FF - extracts from websites titled "Constructing a bore" and "Licence conversions" published by WaterNSW and the NSW Department of Industry respectively; 18. Exhibit GG - revised plan of management prepared by town planner Mr Sinclair dated 3 July 2019; 19. Exhibit HH - landscape sketch plan prepared by Mr Sinclair dated 30 April 2019; 20. Exhibit JJ - s 94 plan "No. 4 - Tweed Road Contribution Plan" prepared by the Council dated May 2014 and spreadsheets concerning the contribution plan; and 21. Exhibit KK - s 7.11 plan (formerly s 94) "No. 4 - Tweed Road Contribution Plan" prepared by the Council dated September 2016.
The following exhibits were tendered by the Respondent: 1. Exhibit 1 - statement of agreed facts (Order appeal); 2. Exhibit 2 - statement of agreed facts (DA 1 appeal); 3. Exhibit 3 - statement of agreed facts (DA 2 appeal); 4. Exhibit 4 - bundle of documents (documents concerning DA 1 and DA 2 and planning instruments); 5. Exhibit 5 - bundle of documents (documents concerning DA 1 and DA 2); 6. Exhibit 6 - bundle of documents (documents concerning DA 03/0445 and the Order); 7. Exhibit 7 - hydrogeology joint expert report; 8. Exhibit 8 - traffic and civil engineering joint expert report; 9. Exhibit 9 - town planning joint expert report; 10. Exhibit 10 - s 96 of the EPA Act (now s 4.55) modification DA 03/0445.02 dated 20 March 2015; 11. Exhibit 11 - two penalty infringement notices (PINs) issued by the Council to Mr Larry Karlos in 2014; 12. Exhibit 12 - conditions of consent DA 1; 13. Exhibit 13 - conditions of consent DA 2; 14. Exhibit 14 - notice of objectors; 15. Exhibit 15 - addendum to hydrogeology joint expert report; 16. Exhibit 16 - plan of distances between bores and sewage; 17. Exhibit 17 - supplementary traffic joint expert report; 18. Exhibit 18 - Department of Environment, Climate Change and Water NSW Road Noise Policy; and 19. Exhibit 19 - supplementary town planning joint expert report identifying dwelling distances from Urliup Road.

[10]

Background/chronology

DA 03/0445 was granted by the Council for use of an "existing stock and domestic water bore for the purpose of a rural industry comprising the harvesting and bottling of mineral water" on 14 August 2003 to Mr Larry Karlos. Truck size was limited to six metres and one truck (two trips) per day.
On 20 March 2015, the Council approved DA 03/0445.02 to modify a number of the conditions of consent, including deleting condition 4 and inserting a 12-month trial period permitting 10 trips per day on weekdays. The trial period lapsed on 20 March 2016.
On 3 June 2016, the Council approved DA 03/0445.04 to modify a number of the conditions of consent, including deleting condition 4A and inserting condition 4B limiting daily delivery movements to 12 trips per day.
On 18 August 2015, Mr Larry Karlos lodged DA 03/0445.03 seeking consent to modify condition 3 of DA 03/0445 to enable deliveries by vehicles up to 19 metres in length. That modification was notified and advertised by the Council to nearby and adjoining property owners from 26 August 2015. The Council refused DA 03/0445.03 on 11 May 2017.
On 11 October 2017, Larry Karlos commenced Class 1 proceedings appealing against the Council's refusal of DA 03/0445.03.
On 24 July 2018 the Council issued a "Notice of Proposed Development Control Order" to the Applicant.
Representations were made to the Council on behalf of Eniflat by Holding Redlich Solicitors with reference to the "Notice of Proposed Development Control Order" by correspondence dated 6 August 2018. On 23 August 2018, the Council responded to the representations by sending a letter to Holding Redlich Solicitors.
On 24 October 2018 in Karlos v Tweed Shire Council (2018) 236 LGERA 146; [2018] NSWLEC 164 the appeal was dismissed and development consent refused to DA 03/0445.03.
As noted in [4] above, on 19 November 2018 the Council received an application for a building information certificate (BC 18/0108) from Mr Matthew Karlos.
On 12 December 2018, the Council served a development control order on Eniflat pursuant to s 9.34 and Sch 5 of the EPA Act in relation to the Site, being a "stop use order" (Stop Use Order) and "demolish works order" (Demolish Works Order).
DA 1 and DA 2 were lodged with the Council on 31 October and 18 December 2018 respectively. The DAs were refused by the Council on 11 December 2018 and 22 February 2019 respectively.
Why the Applicant seeks consent for DA 1 which on its face seeks consent for the current number of daily truck trips to and from the Site, namely 12 trips any day of the year (now proposed to be modified to exclude Sundays and public holidays), requires some explanation. The Council gave consent to DA 03/0445.04 in 2016 to allow an increase in trips from the then permitted two round-trips to six round-trips meaning up to 12 trips which is occurring today. Operations were permitted seven days a week. No traffic report was then required of the Applicant, as identified in the Council's report dated 2 June 2016 at [54] below on the basis that there would be a minor increase in traffic.
That the number of days on which 12 trips can occur in a given year under DA 03/0445 was limited however arose because the Court held relatively recently that the annual level of extraction permitted by the consent is 5 ML/yr. That there is such a limit, the position of the Council, is a result of findings made in Karlos v Tweed Shire Council at [64] and [66]: 64 At the present time, at six loads of a six-metre truck per day, every day, with such a vehicle holding approximately 13,000 litres of water, Mr Karlos's annual water extraction would be approximately 28.5 megalitres. … 66 Obviously, having regard to the volumetric limit imposed by the Water Regulator's GTAs in 2003 (and remaining currently operative), Mr Karlos's activities would exhaust that volumetric entitlement (if operating at the maximum present permitted daily six-metre vehicle's capacity) in approximately 64 days.
That the limit under DA 03/0445 was 5 ML/yr, I infer from Karlos v Tweed Shire Council at [3], arose only in the course of those proceedings. As Moore J identified, the limit of 5 ML/yr transported by six trucks of 13,000 litre capacity per day means the business can only operate 64 days per year as the legal limit. As a result of the parties' submissions in these development appeals I must consider again what the annual limit on water extraction is under the current consent.
As identified in the evidence of Mr Matthew Karlos summarised below at [77], water extraction up to the limit of 12 trips per day every day of the year results in about 28 ML/yr being extracted, the current operation on the Site.
The proposal in DA 1 is that the business operate for 303 days per year which excludes Sundays and public holidays with six trucks (12 trips) per day. The proposal under DA 2 is that the business operates for 303 days per year with 13 trucks (26 trips) per day. The truck size sought is up to 7.3 metres measured bumper to bumper, the present truck size used by contractors collecting water at the Site.

[11]

DA 2 appeal (proceedings 2019/32127)

DA 2 seeks consent for the use of the Site including existing structures for the purpose of commercial water extraction of up to 59.995 ML in each 12 month period. The Applicant's statement of environmental effects (SEE) dated 2 December 2018 as extracted in the SOFAC further describes the proposed development as follows: (i) The Applicant seeks development consent for the following development: (A) the use of the existing bores for commercial water extraction purposes; (B) the use of existing storage tanks for commercial water extraction purposes; and (C) the use of existing shelter/filling station, and driveway for commercial water extraction purposes; (D) Commercial Water Extraction for 59.995ML/Y. ... (f) The proposal would involve: (i) A maximum of 59.995ML of water would be taken out in each 12 month period; (ii) The water would be stored in five existing 22,000 litre water tanks; (iii) The water would be transported by trucks up to 7.3m with a maximum capacity of 13,000 litres. The vehicles are rigid trucks with a maximum length up to 7.3 metres; (iv) Approval is sought for up to 13 loads per day (i.e. 26 trips per day) This equates to 13,000 x 13 x 365=61.685ML/Y (The maximum amount extracted would however remain capped at the State licenced 60ML/Y. That is, there would be no more than 13 truck movements in any given day, but the total yearly truck movements would be no more than 4,615 (equating to a yearly maximum of 59.995ML/Y) Therefore, there will 130 less trucks throughout the year compared to if 13 trucks were to run every day up to a hypothetical total of 61.685ML; (v) The operating hours would be between 7am to 6pm Monday to Friday and between 8am and 6pm on Saturday and Sunday; (vi) All the necessary infrastructure to support the operation is currently in place.
DA 2 seeks consent to extract a greater amount of water than DA 1. A number of contentions are identified by the Council which overlap entirely with those for DA 1. The Council's SOFAC identified the following contentions.

[13]

Character and objectives of the RU2 zone
The second contention states: 2. The development application should be refused because the development is inconsistent with the character of the surrounding locality, and with the objectives of the RU2 Zone. Particulars (a) The Land Use Table in TLEP 2014 sets out the following relevant objective in relation to the RU2 Rural Landscape zone: "1 Objectives of zone • To maintain the rural landscape character of the land." (b) TLEP 2014 seeks to permit a range of uses within the RU2 Rural Landscape Zone while maintaining the rural landscape character of the land. The rural landscape character of the land is comprised of (but not limited to) the topography, vegetation and agricultural vistas. These vistas and scenic amenity values would be diminished by granting consent for 7.3m vehicles to pass along Urliup Road up to 13 loaded truckloads a day (being 26 movements). (c) The development application seeks consent for the use of existing structures on the site, including storage tanks and filling station. Inadequate detail has been provided in the development application in relation to these structures in order to enable a proper assessment of whether they are likely to have an unacceptable visual impact on the character of the area. (d) In addition to providing vehicular access, Urliup Road is used by residents for horse riding and pedestrian-related activities, consistent with the rural character of the land. The proposed development seeks consent to operate between 7am to 6pm Monday to Friday and between 8am and 6pm on Saturday and Sunday (including public holidays), 365 days per year. No relief will be provided to residents from the operation of trucks in association with the proposed development, which is inconsistent with the objectives of the RU2 Zone. (e) Approval of the development application to allow up to 26, 7.3m long vehicles to pass along Urliup Road a day (being 13 trucks in and 13 trucks out) would have an unacceptable impact on the tranquil rural character of the locality.

[17]

Suitable vehicular access
The sixth contention states: 6. The development application must be refused because it has not been demonstrated that suitable vehicular access exists between the Bilambil Village and the subject site to accommodate 7.3 metre long trucks, as required by clause 7.10(e) of TLEP 2014. Particulars (a) Clause 7.10(e) "Essential Services" of TLEP 2014 provides as follows: "Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: (e) suitable vehicular access." (b) Urliup Road is meandering with a number of bends and a narrow alignment. It has not been demonstrated that a 7.3m vehicle and a car (or larger vehicle) are capable of passing one another, with particular concern raised in relation to the narrow bends located between the Bilambil Village and 477 Urliup Road ("the access route"). (c) Where there are points along the access route that are not able to accommodate a 7.3m truck and a car (or larger vehicle) passing one another, a Road Safety Audit (RSA) undertaken by an independent RMS accredited Level 3 Road Safety Auditor of Urliup Road must be provided. (d) The Audit must include details in relation to the following matters with respect to the provision of suitable vehicular access along the access route to accommodate the proposed 7.3m trucks: (i) details of the prevailing road conditions with respect to pavement width, road shoulder width, restricted sight distances on bends, traffic speed, speed limits, delineation, clear zones, hazardous embankments and batter slopes; and (ii) details of treatment measures required along the access route to facilitate safe access to and from the site for the proposed 7.3m truck length and other users of Urliup Road. (e) Having regard to the above, it has not been demonstrated that suitable vehicular access along Urliup Road is available, or that arrangements have been made to make suitable vehicular access available to facilitate the proposed development.

[20]

Public interest and amenity
The ninth contention states: 9. The development application should be refused because approval of the proposed development would have an unacceptable impact on the amenity of residents in the locality and users of Urliup Road. Having regard to the impact on amenity, the number and nature of submissions received, and the contentions raised above, approval of the development application is not in the public interest. Particulars (a) Approval of the development application is likely to compromise existing residents' enjoyment of the rural landscape setting in which they live, as the proposed size of trucks, their weight and frequency of trips will create additional noise, visual impact and road conflicts. (b) The driveway which leads from Urliup Road is not sealed. Therefore, concern is raised to the impacts generated from dust to nearby residential properties, given the size of trucks, weight of loads and frequency of trips proposed along this unsealed driveway. The Applicant has not addressed these impacts. (c) The site and surrounding land parcels are identified as "Land suitable for grazing but not cultivation" and "Land unsuitable for agriculture" on the Respondent's online mapping tool. The truck sizes and frequency of truck movements is inconsistent with the intent of surrounding land uses which would not generate truck movements as proposed. This is evident with surrounding land being identified as unsuitable for cultivation and agriculture which would otherwise likely generate more significant movements. (d) Residents raised concern in relation to the suitability of Urliup Road for the proposed development, having regard to the current state of the road and causeways that would need to be crossed by the heavy vehicles, and the impact the size of vehicles would have on the shoulders of the road which may cause deterioration and damage. (e) Residents have advised that Urliup Road is frequently used by people walking, cycling and horse riding. Approval of the development application will increase safety concerns and compromise the ability of residents to use and access Urliup Road for these recreational activities. (f) Residents have raised concern in relation to noise generated from truck frequency and the proposed hours of operation. (g) Approval of the development application for a water bottling facility and use of existing structures for the purposes of water extraction is not in the public interest having regard to: • the significant number and nature of submissions received; • the inability to undertake an assessment of whether it is appropriate to enable commercial water extraction of the scale proposed due to inadequate information being provided; • the impact that approval of the development application will have on the amenity of residents; and • the contentions raised approval of the development application is not considered to be in the public interest.

[22]

DA 1 appeal (proceedings 2018/384172)

On 31 October 2018, DA 1 was lodged with the Council seeking consent for a water bottling facility and use of Lot 1 DP 735658 (including existing structures) for the purpose of commercial water extraction of up to 28.5 ML in each 12 month period.
The Applicant's SEE dated 28 October 2018 describes DA 1 as follows: (i) The Applicant seeks development consent for the following development: (A) the use of the existing bores for commercial water extraction purposes; (B) the use of existing storage tanks for commercial water extraction purposes; and (C) the use of existing shelter/filling station, and driveway for commercial water extraction purposes. (D) Commercial Water Extraction for 28.5ML. … (f) The proposal would involve: (i) a maximum of 28.5ML of water would be taken out in each 12 month period. (ii) the water would be stored in five existing 22,000 litre water tanks; (iii) the water would be transported by 6m trucks with a maximum capacity of 13,000 litres. The vehicles are rigid trucks with a maximum length of 6 metres; (iv) approval is sought for up to 6 loads per day (i.e. 12 trips per day); (v) the operating hours would be between 7am to 6pm Monday to Friday and between 8am and 6pm on Saturday and Sunday. (vi) all the necessary infrastructure to support the operation is currently in place.
The same contentions as for DA 2 were identified for DA 1.
In the course of the hearing changes were made to DA 1 and DA 2 in relation to the hours of operation for which development consent is sought. No operation on Sundays and public holidays is sought.
The Applicant has clarified that the truck size sought is up to 7.3 metres. Mr Larry Karlos has confirmed that the size of truck currently used and intended to be used by the contractor carrying the water is up to 7.3 metres measured bumper to bumper, in contrast to measuring six metres axle to axle.
The Court went on a view of the Site and surrounds with the parties' legal representatives and their experts during the hearing. The Court drove from Bilambil village along Urliup Road to the Site a distance of about 4.1 kilometres and viewed particularly narrow sections of the road on foot.

[23]

DA 03/0445

The original terms of the 2003 consent stated: GENERAL 1. The development shall be completed in accordance with the Statement of Environmental Effects and accompanying plans prepared by Jim Glazebrook and Associates Pty Ltd dated March 2003, except where varied by these conditions. 2. Deliveries are not permitted during school bus hours of operation on Urliup road. 3. Delivery trucks are limited to six (6) metres in length, unless prior written approval is obtained from Council's Director - development Services. 4. Daily delivery movements are restricted to two (2) trips per day. … GENERAL TERMS OF APPROVAL UNDER SECTION 116 OF THE WATER ACT 1912 (Licence to commence sinking a bore to enlarge, deepen or alter a bore) General Conditions The purposes of these conditions are to: … • specify the need to obtain a license, permit or authority before commencing any works … • Before commencing any works or using any existing works for the purpose of Commercial (Mineral Water Bottling) Purposes an approval under Part 5 of the Water Act 1912 must be obtained from the Department. The application for the approval must contain sufficient information to show that the development is capable of meeting the objectives and outcomes specified in these conditions. … • All works involving soil or vegetation disturbance shall be undertaken with adequate measures to prevent soil erosion and the entry of sediments into any river, lake, waterbody, wetland or groundwater system. … Conditions relating to water entitlements The purposes of these conditions are to - • specify that new water entitlement will not be issued (entitlements must already be held, or must be purchased) • allow rules for water transfers to be applied • specify an annual entitlement (regulated and unregulated streams) • allow the placement of limitations as to when water may be taken to ensure a flow remains for other users and the environment (unregulated streams) • An approval will only be issued in relation to a water entitlement that is already held by the owner of the land subject to this consent or is purchased from another entitlement holder. • A transfer of an entitlement shall be subject to the provisions of the Water Act 1912 the regulations made thereunder and the transfer rules applying at the time of application as determined by the Department • The authorised annual entitlement will not exceed 5 megalitres. … Conditions for water use ... • If required by the Department the extraction and use of water must be recorded and reported as specified by the Department... ... Conditions for Bores and Wells See also "general conditions" and "conditions for water use" The purpose of these conditions are to: • set a limited time for bore construction … • Works for construction of bores must be completed within such period as specified to the Department. … • The volume of groundwater extracted as authorised must not exceed 5 mega litres in any 12 month period commencing 1 July. The allocation will be reviewed if there is any change in the ownership of the land. • The Department has the right to vary the volumetric allocation or the rate at which the allocation is taken in order to prevent the overuse of an aquifer. … DEPARTMENT OF INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES GENERAL TERMS OF APPROVAL FOR A LICENSE UNDER THE WATER ACT 1912 FOR DEVELOPMENT APPLICATION NUMBER 03/0446 General Conditions The purposes of these conditions are to … • specify the need to obtain a license, permit or authority before commencing any works • specify that, in most cases an approval will only be issued to the occupier of the lands where the works are to be located (as required by the Water Act) … • Before commencing any works or using any existing works for the purpose of Temporary Dewatering for Construction Purposes, an approval under Part 5 of the Water Act 1912 must be obtained from the Department. The application for the approval must contain sufficient information to show that the development is capable of meeting the objectives and outcomes specified in these conditions. … Conditions relating to water entitlements … • The volume of groundwater extracted as authorised must not exceed 10 megalitres. • Extraction of water under the approval to be issued shall be subject to conditions with regard to availability of supply and such restrictions as are deemed necessary by the Department from time to time to ensure an adequate flow remains for other water users and the environment. … Conditions for Bores and Wells … • Works for construction of bores must be completed within such period as specified by the Department. …
The SEE by Jim Glazebrook & Associates Pty Ltd dated March 2003 referred to in condition 1 describes the development at page 2 as follows: • installation of a 30,000 litre storage tank in the existing pool shed, • installation of filter systems to both the inlet and outlet of the storage tank, • connection of the existing bore to the storage tank, • establishment of a work and storage area for the bottling operations within the confines of the pool shed.
The SEE describes the infrastructure associated with the proposal as: • existing bore [the Court was informed that this refers to bore 1], located approximately 150 metres from the pool shed (bore licence No. 30BL 179893 issued by the Department of Land & Water Conservation, 25 January 2002) see Appendix A. • pool shed, part of Building approval 1221/95 issued by Tweed Shire Council, 1 November 1995. • 30,000 litres plastic storage tank (see Photoplate 1). • Filter system (see Appendix B) • 20 litre storage bottles.
The accompanying plans referred to in condition 1 of the consent are at Appendix C of the SEE. The single storage tank is shown to be located within a pool shed (as shown in Figure 1, which is the extract of Figure 2 in Appendix C below). The pool shed is located to the north of the existing dwelling on the land and the bore is located to the south of the existing dwelling on the land (as shown in Figure 2 (below), which is the extract of Figure 3 in Appendix C). Figure 1: Extract of Figure 2 "Pool Shed Layout" in Appendix C of the SEE prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003. Figure 2: Extract of Figure 3 "Site Plan" in Appendix C of the SEE prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003.
While other amendments were made by DA 03/0445.02 in 2015 these were superseded by DA 03/0445.04. Conditions 2B and 4B were inserted into the consent in 2016 by DA 03/0445.04 (conditions 2 and 2A were deleted) and state: 2B. The hours of operation and deliveries are: • Monday to Friday 7.00am to 6.00pm • Saturday and Sunday 8.00am - 6.00pm … 4B. Daily delivery movements are restricted to 12 trips per day.

[24]

Council planning committee meeting agenda dated 2 June 2016

The agenda for the Council's planning committee meeting on 2 June 2016 concerning the evaluation of DA 03/0445.04 (to allow an increase in trips from the then permitted two round-trips to six-round trips, meaning up to 12 trips) contains a report prepared by the Council's development assessment and compliance team. The report provides inter alia a list of objections to the DA and the Council's assessment of each: Issue Council Assessment … … Given that the S96 is only a minor increase in the number of traffic movements a traffic assessment is not considered necessary. No submitted traffic assessment to demonstrate how it will not compromise the structural integrity of Urliup Road. There is no proposal to increase the weight or size of the delivery vehicle which would necessitate a review of the road's structural integrity. … ... … The proposal fails to adequately demonstrate how it will not compromise the structural integrity of Urliup Road, and the existing predominantly residential and rural traffic network of Urliup Road. Given that the S96 is only a minor increase in the number of traffic movements a traffic assessment is not considered necessary. There is no proposal to increase the weight or size of the delivery vehicle which would necessitate a review of the road's structural integrity.

[27]

Larry Karlos

Mr Larry Karlos swore an affidavit dated 23 March 2019. He is the director of Eniflat which he controls and owns with Mrs Suzanne Karlos (his wife). Mr Karlos is 60 years old and has occupied 477 Urliup Road (a family farm) for 32 years. Eniflat is the owner of the land. Mr Karlos operated a restaurant for 38 years which he sold five years ago. At this time he has no material savings or superannuation for retirement. Mrs Karlos is unable to work. In 2003 Mr Karlos started a water extraction business at 477 Urliup Road. This business has built up slowly over the past 15 years. The costs associated with running and maintaining the Site include fencing, cattle, spraying, rates, insurance and general maintenance.
Mr Karlos and his wife rely on the water extraction business to make a reasonable income from the Site. The area was traditionally dairy country but the dairy farms and associated rural businesses in the area have shut down. The water extraction business provides work for local trades, transport, electricians and plumbers. This includes full-time employment for 6-7 full-time truck drivers. It also provides work for factory workers at the bottling end. The water extracted from the Site is supplied to numerous water bottlers including the indigenous family-run Waddi Springs business (which has purchased water from the Applicant's business for approximately 10 years).
A significant proportion of Mr Karlos' income is being used for legal and consultant costs. He has significant debt and limited savings. If Mr Karlos or Eniflat are not successful in these proceedings, Eniflat will be forced to sell the Site.
Mr Karlos swore a second affidavit dated 9 April 2019. In addition to the commercial use of 477 Urliup Road for a water extraction business, the Site is also used by him and his family for domestic and farming purposes. The farm currently has approximately 50 cattle, seven goats and between 15-20 chickens. When calves are born and reach maturity, some of them are sold to third parties. Mr Karlos and his family also grow various vegetables on the Site for personal consumption only.
The Karlos family use the covered structure, pipes and other equipment located on the access road west of the dwelling as a parking, maintenance and service point for their tractor (which is used for farming purposes) in order to change its implements and oil. There are two tap fittings in this area which are used to fill bottles for domestic use and fill drinking troughs for the livestock on the Site.
The five blue tanks on the Site are used for the water extraction business and for domestic use. The bore identified as 30WA308262 (bore 4) is used for domestic purposes and not for the water extraction business. The bore identified as 30BL183219 (marked as bore 2 on Ex K) is also used for domestic purposes. The bore identified as 30BL207402 is a monitoring bore. The bore identified as 30WA320494 (marked as bore 1 on Ex K) is not currently being used.
Mr Karlos stated in cross-examination that he initially extracted water from an aquifer through bore 1 through a filter system between 2003 and 2004 or so. Between 2004-5 Mr Karlos installed two 22,000 litre tanks. Subsequently and in the following order bores 2, 3, 5 and 4 were drilled and three more tanks were installed (either one or two and then the remaining tank/s were installed). If facing the five tanks today and looking up the hill, the middle two tanks (tanks 2 and 3) were the first tanks to be installed. The first tank from the left appears to be different to the other tanks. Tanks 2 and 3 were installed on a concrete slab larger than necessary to accommodate these two tanks. Mr Karlos put this sized slab down because he knew that the business would grow and that more capacity would be required. The concrete slab was not constructed according to an engineer's design. Bores 2 and 5 have their own meters and are piped separately to the tanks. Bore 4 is typically used for stock and domestic purposes. There was previously a pipe connection between bore 1 and the tanks 2 and 3 which is no longer.
At present, water from bores 2 and 5 goes to the five tanks and the tank attached to Mr Karlos' home for domestic use. Initially Mr Karlos sourced water for domestic use from a rainwater tank but then decided to source water from the five tanks due to contamination issues. Further, water for domestic use was solely sourced from bore 4 but due to a pump malfunction Mr Karlos has had to use all five tanks. The water stored in the five tanks is also used for farm purposes including irrigation and cattle troughs.
Mr Karlos stated that he is familiar with the terms of the water licences granted to him by the government. He was asked about development consents granted to him by the Council. Mr Karlos was responsible for giving instructions to Mr Glazebrook to prepare the s 96 (now s 4.55 of the EPA Act) application to amend the development consent. One of the conditions in the amended consent dated 3 June 2016 stated "[i]f required by the Department the extraction and use of water must be recorded and reported as specified by the Department". Bores 2 and 5 are the subject of monitoring installed by Mr Karlos in either January or February 2019. Prior to this system being installed, the amount of water extracted from bores 2 and 5 was measured via an analogue meter. His son Matthew Karlos handles reporting. Mr Karlos said that he spoke with an officer from what he described as the "Department of Water" who told him that he could use water extracted from the bores for irrigation and domestic use so long as extraction did not exceed 60 ML.
Mr Karlos stated that he uses trucks that have a 13,000 litre capacity per load and operates seven days per week all year round except on some public holidays. Typically, six loads leave the Site per day except in certain instances for example where a truck has broken down. The "costs of running and maintaining the site" referred to in his affidavit dated 23 March 2019 do not differentiate between those associated with the water business and the farm.
Three trucks from Ross Transport Pty Ltd (Ross Transport) service Mr Karlos' business, the sole transporting contractor for water from the Site. It is contracted to the bottling companies to which Mr Karlos supplies water.
The structure over the pumping or filling station for the trucks which draws water from the five tanks was constructed by engineer Mr Mark Pippard between 10-15 years ago. It was not built solely for the water business, it was also built for farm use (that is, for the tractor and as an irrigation point). There was nothing in the original development consent granted in 2003 that authorised this structure.
Mr Karlos used 16 or 19 metre trucks for the purpose of the water business between around 2006-16. He did not have written approval from the Council to use these trucks for the purpose of transporting water from the Site. Sometime around 2006, Mr Ray Clark from the Council told Mr Karlos that it was no problem for him to use milk tankers. No form of written approval from the Council to this effect was received.
Mr Karlos stated that he made an application to amend the development consent in June 2016 in relation to two truck sizes (5.6 and 6 metres). This is because he had received a call sometime before 2016 from Ms Galle stating that he was illegally using trucks that were too long.
Mr Karlos confirmed that he had been issued with two PINs by the Council on 9 October 2014 and 12 December 2014 for the number of trips to and from the Site. He disputed that these were in relation to the size of the trucks used because he had received verbal authority from a Council officer to use milk tankers.

[28]

Matthew Karlos

Mr Matthew Karlos swore an affidavit dated 23 March 2019. Mr Karlos manages the business on 477 Urliup Road. Since at least 1986 the Council and/or employees or contractors acting on behalf of the Council have used roads and turning bays on the Site for the purpose of turning around and loading and unloading vehicles. This has been necessary because once a vehicle passes the Site (heading south-west toward Murwillumbah) the road is unsuitable for access by large semi-trailers or similar vehicles. Since at least June 2016 Mr Karlos has seen the Council use the driveway on the Site to turn around a 21-metre low loader semi-trailer or similar vehicle, and load and unload heavy earth-moving equipment onto such a vehicle. Mr Karlos included photographs of the vehicles he sighted on or about June 2016, 1 March 2017, 30 August 2017 and 1 November 2017. The Council, private businesses and residents use Urliup Road to turn large vehicles (including but not limited to 21-metre long vehicles) all year round.
The water extraction business on the Site operates as follows. Water is extracted at a rate of six loads of a six-metre truck with a capacity of 13,000 litres per day, every day.
On 3 June 2016, Ms Galle a town planner for the Council (team leader of the development assessment planning and regulation division) told Mr Karlos that the 5 ML restriction in the consent was redundant so long as he had water licences from the NSW Office of Water to extract 60 ML each year and complied with the rules for truck movements.
On 2 August 2016 Mr Karlos had a meeting with Ms Galle and Ms Hundy from the NSW Office of Water. Mr Karlos had arranged this meeting to clarify that the representation Ms Galle had made that the Applicant was allowed to extract 60 ML of water per year was true. Ms Galle said that the NSW Office of Water had informed her that so long as there were extraction licences permitting the extraction of 60 ML, there would be no issue. Ms Hundy confirmed this.
In examination in chief Mr Karlos stated that the local school bus passes the Site at 8:00 am in the morning and 4:00 pm in the afternoon (give or take several minutes). The bus takes children to and from schools in Murwillumbah and does not take any children to and from the Bilambil school.
Mr Karlos stated that according to his knowledge at no time had the business received approval from the Council for the use of vehicles over six metres. The water licences entitle the family business to extract 55 ML from bores 2 and 5 and 5 ML from bore 1. Based on the current operation of the business, a maximum of 28.5 ML is extracted from bores 2 and 5 per year. A much smaller volume is extracted for other purposes.

[29]

Objectors

The Court heard from several objectors during the Site visit. Ms Champ resident of Urliup Road was concerned for the safety of all users of Urliup Road including car drivers, walkers, cyclers and horse riders. The four kilometre road (measured from the first bridge to 477 Urliup Road) narrows significantly, is winding with blind corners, blind hillocks and single-lane causeways and narrows further to a stretch of single vehicle wide roadway with a steep embankment on one side and a steep drop-off on the other. It is already scary passing the regular water trucks on the road and the proposed 26 intensive truck movements under DA 2 is dangerous. Trucks often pull off the roadside into a parking area and wait for another water truck to traverse the stretch of hazardous roadway before continuing. In wet conditions Ms Champ has spun out on a corner while passing one of the water trucks. Further the proposed volume of water to be extracted is excessive. Truck movements are also noisy and damage the rural amenity of the locality. The local residents have no town water and are reliant on the water from Bilambil Creek for domestic and stock needs particularly with rising temperatures and declining rainfall. The bore water extracted by Mr Karlos has a lower standard than tap water. According to the Environment Protection Authority, drinking water must have a pH of 6.5-8.5 and according to the Eco Logical Australia (Eco Logical) report relied on by the Applicant (see below at [92]-[96]), water from the main bores used has a pH of approximately 6.1.
Mr McIlveen resident of Urliup Road stated that Urliup Road (a predominantly single lane road) is not suitable for the increased amount of traffic proposed by DA 2. This increased amount of traffic may also damage the road surface. For example there are two narrow concrete causeways some 70 years old which have been showing signs of deterioration. It is unclear whether the increased number of truck movements can be confined to the allotted time of 7:00 am to 6:00 pm.
Ms Lambert resident of Urliup Road since 2002 stated that the seven day per week interstate trucking operation that now seeks a major increase of truck movements already has an unacceptable traffic impact on quiet and rural Urliup Road. Many in the community have had close encounters with the trucks and Ms Lambert has personally witnessed many of these. The Council's application of compliance enforcement has been inconsistent. For years the Applicant's business has been in breach of the DA consent conditions while the Council until recently has been reluctant to take action in response to complaints. The modifying DA in 2015 to remove certain restrictions on truck movements was hastily processed by the Council with no regard for the impact this would have on local residents. The challenging road conditions have not been given sufficient weight in considering the impact on the amenity and safety of the locality. The development is at odds with the TLEP and the Rural Lands SEPP since the "social, economic and environmental interests of the community" are impacted but have never been assessed. Nor has the development been shown to be in the public interest. The development is incompatible with other rural businesses including new opportunities now being promoted in the "Tweed Rural Land Strategy".
Ms Downes resident at Urliup Road for almost five decades described the impact that the introduction of 19-metre water trucks had on the amenity of the locality. All sightseers and recreational users disappeared. This has consequently harmed the local economy. Ms Downes has personally experienced several near misses with the trucks and has heard similar incidents from other residents. Further the local residents rely on Bilambil Creek for household and agricultural usage, and it supports endangered flora and fauna. Ms Downes previously used the creek water to commercially grow echinacea but since Mr Karlos has been extracting water for several years she can no longer depend on the creek as a water supply. Ms Downes' neighbour on Urliup Road filed a report with the Natural Resources Access Regulator in March 2019 stating he can no longer rely on the creek for raising livestock (which he has done since 1990) since Mr Karlos' water extraction business began.
Ms Gresham spoke on behalf of Ms Parkes of the Bilambil Public School P&C Association. There is a steep descent into Bilambil village and cars are often banked up on the edge of the road waiting to turn into the school's drop-off area reducing the available width of the road, causing large vehicles to suddenly slow down to pass the cars. Doubling the number of trucks on this route would double the risk of a tragedy occurring outside the school. Further the heavy water trucks pose a danger to students in the surrounding areas getting off and on school buses, including the crossroads at the top of the Bilambil hill and further down the winding Scenic Drive. At any time of the day there can be groups of children crossing or walking beside the road to participate in a sporting event. DA 2 would result in a water truck passing the school at least once every half hour. Ms Gresham also spoke on behalf of Ms Robinson director of Bilambil Community Preschool and OOSH Inc. She stated that families have had concerns in relation to the effects of additional water trucks travelling past Bilambil Road daily. The noise of the water trucks is invasive and distracting and there would be an obvious affect on kids in preschool and OOSH Inc. This is particularly because most of the children with additional needs have noise sensitivity difficulties. The outdoor area at Bilambil Community Preschool and OOSH Inc is used several times per day and the children's teaching and learning would be disturbed. Children's safety is also a major concern with extra trucks potentially increasing the chance of accidents occurring. Parking around the preschool and school is minimal meaning that families have to park alongside the road. There are no footpaths to walk on either side of the road and with cars parking, families often have to walk behind cars to get to the school or preschool. Families who live along Urliup Road who have children attending the preschool reported near misses as the water trucks speed along the road. They are also concerned with the environmental impacts to the region including those associated with increased water extraction from the creek.
Mr White representative for the Tweed Water Alliance described the various adverse impacts of water mining in the region. Tweed Water Alliance is a not-for-profit group formed to prevent a DA submitted to extract water from a rural property near Uki for bottling in Queensland. Mr White stated that there are no valid environmental impact studies at either a local or regional level which indicate that the industrial scale water extraction from Tweed Valley for the bottled water industry is sustainable. Ian Acworth Emeritus Professor at the University of New South Wales and past director of the Connected Waters Initiative Research Centre at the university said, in relation to the Eco Logical report (see below at [92]-[96]) submitted with at least two of the Applicant's DAs that the water in the abstraction bores had a very similar chemistry to the water sample from the creek. This indicated a hydraulic connection between the two suggesting that pumping from the fractured rock would impact on the creek. Mr White also stated that climate change is resulting in warmer weather, increased evaporation and increased drier periods. Climate change is poorly accounted for in the reports relied on by the Applicant. They fail to examine trends associated with groundwater availability including temperature trends, evaporation rates or surface runoff versus recharge rates. None of the hydrological tests recommended by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) for mapping and understanding the fractured rock aquifers have been conducted in the Tweed Shire.

[30]

Supporters

Mr Nash of Simon Nash Pumps and Irrigation, resident of Piggabeen Road Piggabeen has been servicing the pumps and filtration at 477 Urliup Road for the past 17 years and the water supply and bottling industry for over 25 years. There has been an increase in the consumption of clean drinking water since the early 1990s which has health benefits. Subterranean water is constantly being renewed via the water cycle. Eniflat is environmentally friendly and the water supply is far more sustainable than most other industries. The water is consumed in the local area and provides jobs locally. The water extracted is 60-90 metres subterranean, flows through water aquifers and has no effect on creeks and dams. Only a small proportion of aquifer water is extracted.
Ms Smith resident of Urliup Road has lived in the region for 16 years and her husband has been in the cattle industry for 20 years. The trucks used to transport water extracted from 477 Urliup Road are no wider than school buses. The trucks used now are six metres in length compared to the 19 metre trucks used five years ago. Mr Karlos' business is entrepreneurial. There has been no change to the water flow as a result of the operation of his business and Mr Karlos has been co-operative with the Council in relation to potential groundwater impacts.
Mr Bethky resident of Ashmore has been transporting water from 477 Urliup Road for the past 16 years. He was a councillor of the Council when Mr Karlos' original DA was approved in 2003. There have been no safety issues associated with the trucks driving along Urliup Road. High quality water sources are in short supply and there is significant demand for such water from bottling companies.
Ms Byne spoke on behalf of Mr Dawes resident of Dungay Creek Road via Murwillumbah and friend of Mr Karlos and his family. The agricultural industry in the Tweed Valley has changed significantly over the past 50 years. The dairy, piggery, banana and sugar cane industries previously predominated. The beer brewery and gin distillery industries have grown. Rural businesses must be able to change and adapt to be viable. Road safety issues associated with Urliup Road have been caused by the road being in a constant state of disrepair which is the Council's responsibility not the trucks transporting water from 477 Urliup Road.
Mr Brimsmead resident of Duranbah has lived in the region for nearly 80 years. He sometimes comes to the Bilambil area to play tennis. There were more than 1,000 dairy farmers when he was growing up and the banana and cattle industries also predominated. Urliup Road was used to transport the produce from these industries and was more actively used than it now is. Today only three dairy farmers and several banana growers remain. Rural industries in the Tweed region are struggling. Most residents no longer use their land to earn their primary form of living. The region is one of the wettest areas in NSW and Australia and if groundwater is not used it will be wasted. The objectors oppose the development because they generally oppose extractive industries rather than the specific development.
Mr Blissett resident of Urliup Road is a third generation primary producer in the Bilambil/Urliup valley. Trucks have played an important role in the valley's history being an essential part of the dairy, beef, banana and logging industries. Some industries have been replaced by newer industries including legal water extraction. Like any other operating business on Urliup Road it requires the use of trucks to sustain its business. Water trucks are not the sole users of Urliup Road. Garbage trucks, dump trucks, concrete and timber trucks, and trucks that commercially transport horses, cattle and earthwork equipment are used. The section of the road between the start of Urliup Road and 477 Urliup Road is the safest, straightest and widest part of the total road yet council work is required to improve safety.

[31]

Hydrogeology joint expert report

The hydrogeologists Dr Martens for the Council and Mr Neame for the Applicant prepared a joint report dated 9 April 2019. Issue Agreement / Disagreement … … The experts agree: Location of Bores 1. That the license [sic] conditions issued on 1 July 2016 requires that the bore B5 works must be: LEC 00384157 a. 89 m from any boundary of the property (clause 19(1)). Contentions 1e-g b. 40 m from the nearest high bank of the high bank of any river, creek or watercourse (clause 19(5)). 2. That B5 is located within 89 m of the property boundary. 3. That it is not clear whether B5 is located in compliance with clause 19(2) of the works license. … … The experts disagree as follows: Impact of Proposal on Creek Flows 1. In respect of hydrogeological model reported in the Ecological Report: LEC 00384157 a. DM [Dr Martens] is of the view that there is insufficient information in the Ecological Report to justify a conclusion that there is no connection between the surface water system and the groundwater system being extracted. Specifically: Contentions 3g, 4d … LEC 00385172 b. TN [Mr Neame] is of the view that the alluvium presents an effective barrier to water exchange between the creek and the fractured rock aquifer as demonstrated in the Ecological Australia report (ELA 2106): Contentions 3, 4, 5a-e, 9g, 10e … LEC 0032127 iii. Hydraulic conductivity values applied to the alluvium in the DM Modflow model are within the range characteristic of fine to medium sands. Assuming the drillers can distinguish between clay and sand, typical ranges of hydraulic conductivity for silty clay to sandy clay are 0.0000043 to 0.0043 metres/day. If the clay was misinterpreted as clayey sandy gravel, the typical value range would be 0.00043 to 0.43 metres/day. On this basis, the DM model is likely to very substantially overestimate baseflow from the alluvium to the creek and similarly the potential for groundwater flow from the alluvium to the extraction bore. Contentions 3, 4, 5a-3 9g iv. Substitution of these typical values of hydraulic conductivity for the alluvium into the DM model are likely to result in a very significant reduction in baseflow contribution from the alluvium to the creek and a similar very significant reduction in water exchange between the alluvium and the underlying fractured rock aquifer. … Proximity of Bores to Sewage Systems The experts agree as follows: LEC 00385172 1. That the rate of groundwater extraction is a commercial rate, and assuming say a typical household uses 250 KL/year, would be equivalent to say 114 dwellings in respect of the application to extract 28.5 ML/year, and say 240 dwellings in respect of the application to extract 59.995 ML/year. Contention 3f 2. That the groundwater extraction bores B1, B2 and B5 are located within the 250 m buffer to sewage disposal systems as recommended in the DLG [Department of Local Government] Sewage Guidelines. LEC 00032127 3. That the DEC [Department of Environment and Conservation NSW] Sewage Guidelines provide some guidance in respect of the necessary buffer between groundwater wells and sewage disposal systems where the extraction rate is significantly more than that for a domestic supply. Contention 3f 4. That the onsite sewage disposal system discharges to soils formed within the alluvium. The experts disagree as follows: 1. DM is of the view that: a. Insufficient information has been provided to justify the significant reduction in recommended buffer from 250m to a domestic sewage disposal system. b. On the basis of the DEC Sewage Guidelines, the proposed commercial extraction rate may require larger buffers than the 250m recommended by the DLG Sewage Guidelines. 2. TN is of the view that: a. The DLG Sewage Guidelines recommend the seeking of advice from the relevant water authority and a hydrogeologist where land application within drinking water catchments and other sensitive areas are planned. Confirmation of the adequacy of proximity of the groundwater extractions to the surface water system was provided through consultation with DPI Water hydrogeologist (the Rumpf email). b. The DEC Sewage Guidelines provide recommendations on appropriate buffer distances where no other information is available. The guidelines recommend taking into account site specific factors including pathogen levels, soil conditions and volume of effluent. Effluent volume is low and the application rate relative to the extent of the landholding is low. c. Analyses of groundwater extracted from the bores on this site provide confirmation that no microbial contamination-has occurred despite coincident use of groundwater extractions and septic irrigation over the preceding 14 years. … …

[33]

Eco Logical Australia report

Eco Logical prepared a groundwater assessment report (reviewed by Mr Neame) for the Karlos family dated November 2016. This was attached to the Applicant's application to increase their licenced abstraction (extraction) allowance from 60 to 98 ML/yr, which incorporated extracted water from the adjacent property 483 Urliup Road. An impact assessment of the potential impacts of the cumulative extraction from 477 and 483 Urliup Road on the groundwater and surface water systems was required.
In respect of the Site, the sewage tank outlet is located approximately 160 metres northeast of bore 1 and approximately 50 metres north-north-east of bore 4.
The report found that there are no groundwater dependent ecosystems within one kilometre of the Site. According to water quality analysis and water level observations within the creek during periods of pumping, the report concluded that there is no connection between the surface water and groundwater systems at the Site. There is a potentially low risk of very minor to negligible impact on the surface water and groundwater system from the extraction of groundwater of up to 98 ML/yr.
Water levels in Bilambil Creek were measured between 10 and 17 November 2016 during which period intermittent pumping of bores 2 and 5 occurred. There was no correlation between creek water levels and periods of pumping. Creek water levels responded very quickly to rainfall events. The presence of a significant connection between the creek and the underlying aquifer would be expected to result in changes to the water level in the creek with the creek potentially drying up completely.
A water sample was taken from Bilambil Creek at the downstream stage monitoring location on 15 November 2016. A water sample was also taken from bore 5 at the same time for a direct comparison of water quality. The samples were collected following a period of no rainfall in the vicinity of the Site and recession of creek water levels to reflect the water quality of the creek with minimal interference from rainfall-induced overland flow. The results indicated that the mineral water quality of the creek is similar to that of the groundwater. Large discrepancies between surface and groundwater qualities were observed in the microbiological results which indicated very significant faecal contamination (evidenced by E. coli in the sample) of the surface water and no such contamination of bore 5.

[36]

Cross-examination - hydrogeology

Mr Neame stated that the groundwater in the area is located within alluvium that has very low permeability. Therefore when pumping occurs there will be no connection between the water table within the alluvium and the pumped water below the alluvium. In contrast, Dr Martens asserted that there is more than likely to be a strong connection between the water within the alluvium and the greywacke below. This means that when water is pumped from the greywacke material below the alluvium, it is likely that the water table within the alluvium will lower. Accordingly, there is a connection between the baseflow that occurs within the creek and the pumping of the aquifer.
Mr Neame's opinion is based on driller's logs and observations of water levels made in various bore holes (not in evidence), water quality analyses of water samples collected from those bores in the creek, and general observations of the geomorphology of the area. Mr Neame acknowledged that although drillers' log descriptions should not be solely relied on, it is quite reasonable to expect that if a driller encounters or describes clay then they will have correctly identified a very fine-grained material akin to clay. The bore logs identified clay and clay with gravel. Mr Neame acknowledged that no tests have been conducted verifying that the alluvium is comprised of predominantly clay.
Mr Neame's opinion is also based on the fact that no E. coli bacteria have been detected in the groundwater unlike the creek water, where a possible source is the septic tank on the Site. If the alluvium material had the range of permeability ascribed by Dr Martens, the material would be geologically classified as clean sand or fine-to-very-fine sand. The pore spaces between fine sands are of an order of magnitude between 6-12 microns. E. coli typically have a diameter of between 0.5-1 microns and a length of 1-2 microns. Hence if the alluvium was fine sand, it would be expected that E. coli would be detected in the groundwater. This is because over the years whenever the Applicant has switched on his bore they have induced a hydraulic gradient between the bore and the shallow water table that is within the alluvium and connected to the creek. Each time this occurred, it would be expected that E. coli would pass further and further into the alluvium and ultimately within the fractures from which groundwater is extracted. Water quality analyses conducted have consistently found no E. coli within the bores on the Site. E. coli was found within Bilambil Creek water. According to Mr Neame, this provides strong evidence that there is an effective barrier to E. coli and therefore to the water within the bores. In response, Dr Martens stated that viruses can survive much longer within soil and can be transported significant distances. The "Beavers-Gardner" model has long been recognised as an acceptable model to determine how far particular viruses will be transferred from an effluent disposal field to a groundwater bore. This model has not been applied in relation to the Site.
In the Eco Logical report, Mr Neame relied on analysis of one sample collected from bore 5 on 15 November 2016 compared with a sample collected from Bilambil Creek. DPI Water agreed with the conclusion of this report including that there was unlikely to be a hydraulic connection between the Neranleigh-Fernvale beds and Bilambil Creek (see [98] above). Dr Martens disputed the Applicant's submission that DPI Water had peer-reviewed the Eco Logical report. Instead, DPI Water had probably taken the report at face value and had not investigated whether the report was a true representation of the hydrogeological system within the Site. Further, in affirming the conclusions of the Eco Logical report, DPI Water was not making a site-specific assessment. This is because DPI Water is responsible for licensing on a larger regional scale and it does not have the capacity to make decisions in relation to site-specific matters.
Dr Martens stated that there has been insufficient testing to support Mr Neame's view. There has been no physical testing of the alluvium and its permeability below the Site. Only testing at the regional level has been conducted which shows higher permeability of alluvium than what Mr Neame asserts. Dr Martens' conclusion that it is more likely than not that the alluvium has moderate-to-high permeability accords with observations he has made in relation to other floodplains where there are sands and gravels that are deposited in layers across the floodplain. According to both Dr Martens and Mr Neame, the issue could be resolved by conducting a simple test. This would involve installing two bores, one to a shallow depth which just penetrates the alluvium and one to a deeper depth which penetrates into the rock aquifer below but seals out the alluvium. When the pumps are turned on, if both bores respond in the same way then there is a connection between the alluvial material and the rock below. If the alluvium does not move but the other bore that goes deeper drops substantially, then it could be concluded that there is a hydraulic disconnection between the alluvium and the rock material below.
Dr Martens stated that the driller's log recorded for bore 5 when it was installed does not refer to clay. Mr Neame disputed this, stating that for the depth of 5-10.5 metres the alluvium was described as "decomposed greywacke" which he interpreted as greywacke fragments within a matrix of clay. Mr Neame stated that the driller's log for bore 2 identified red and grey clay between the soil level and a depth of eight metres. One of the other bore holes described nine metres of clay loam, followed by two metres of basalt. The experts agreed that identifying basalt was geologically impossible. Mr Neame emphasised this to show that the driller's log descriptions require interpretation.
Dr Martens stated that the word "clay" does not of itself signify that the permeability will be low since the permeability of clay varies. Mr Neame disputed this. He considered the permeability for clay sands to be between 5x10-9 and 5x10-6 metres per second (which is below the low range that Dr Martens attributed to the alluvium below the Site, 1x10-5 metres per second).
Dr Martens stated that the cross-section in the addendum to the hydrogeological report is based on the Geoscience Australia DEM data. There is no survey data demonstrating the actual levels of the creek bed within the Site. He located the creek bed below the groundwater table as represented in the cross-section or lower than this representation. Mr Neame located the creek bed at a depth slightly higher than Dr Marten's estimate because the DEM was likely to be inaccurate. Accordingly, the base of the creek was likely to be either at the groundwater table level or higher. Dr Martens also observed that the groundwater level in bore 3 was higher than the groundwater table. He inferred from this that since bore 3 is located at some distance south of bores 1, 2 and 5, this level is a reflection of what the groundwater table would likely be in an unaffected or less affected state from pumping.
The experts agreed that all bores at the Site except bore 4 (which is used for domestic purposes) are regulated under the Water Sharing Plan. Dr Martens stated that the groundwater is part of the New England Fold Belt Coast Groundwater Source and the alluvial local source, which Mr Neame disagreed with. This point of difference in opinion flows from the experts' different interpretations of the hydrogeological conceptual model, where the alluvium either allows water through or prevents it.
Referring to the Eco Logical report, Dr Martens stated that the quality of water in the creek is very similar to that in the bores. This suggests a strong connection between the creek and the bores. Mr Neame believed that this was due to the fact that water from rain that forms part of groundwater rainfall recharge and that which ends up in the creek travel along similar rock and for a similar length of time.
Mr Neame concluded that the extraction of water from the bores on the Site would not be expected to have an adverse impact on agriculture taking place on the surface, which is separated from the groundwater extraction by the alluvium. Dr Martens did not consider agricultural impact since it is beyond his expertise.
Dr Martens stated that the DLG guidelines recommend a minimum setback distance between a domestic bore and a sewage disposal system of 250 metres. According to the Eco Logical report, the distances between bores 1, 2 and 5 are within approximately 160 metres of the Applicant's sewage disposal system. He stated that this buffer applies to low-take groundwater systems (groundwater bores and domestic-supply bores) and that larger buffers are typically applied to higher-yielding bores. Dr Martens said there is no corresponding standard for bores which extract larger volumes than for domestic purposes. There has not been the type of risk assessment that would normally occur in relation to encroaching on recommended buffer distances. Dr Martens emphasised that the buffer distances recommended by the guidelines are to be construed as a minimum standard particularly since this case involves a large commercial supply of water rather than a domestic supply. According to Dr Martens, the 250-metre offset rule is almost never broken. Mr Neame stated that the guidelines recommend seeking the advice of the relevant water authority and a hydrogeologist, which has occurred in this case. The relevant water authority reviewed the Eco Logical report and found it satisfactory. The guidelines state that narrower buffers may be appropriate.
Regarding the assessment of climate change and the impacts on and from the development, Dr Martens stated that there was no information in relation to the impact that the development might have under the scenario of climate change. The experts agreed that rainfall was expected to increase which would cause the groundwater tables to rise by some level. According to Dr Martens, climate change impacts could be assessed by considering the change in rainfall and determining whether there would be a relative change in groundwater recharge. Mr Neame agreed that the impact of climate change may be variable but believed a change in hydraulic head values within the bores relative to the creek was irrelevant. Climate change would not have a significant impact on the natural water systems associated with the Site.
The experts were cross-examined by the Applicant about their qualifications. Dr Martens stated that he is an expert in hydrogeology, hydrology, water supply (reticulation of water to households and farms), wastewater management, traffic engineering, civil engineering, geotechnical engineering, land contamination, coastal processes and engineering, and environmental systems and processes. He runs an engineering practice with 50-60 engineers and he is the team leader and principal engineer on all projects. On any given day, there is a project which involves hydrogeology. He undertakes hydrogeological-related work (including supervision and fieldwork) on a continuous basis. Mr Neame stated that he works full-time as a hydrogeologist as his primary profession.

[39]

PC [Mr Corbett] has prepared a number of concept plans to illustrate the above improvements and these are provided as Annexure B. 9. The experts agree that the plans prepared by PC are concepts only and that these arrangements would require a review and assessment by an independent Level 3 Road Safety Auditor, including recommended changes to the works, if deemed necessary (refer to link for list of auditors by clicking the Level 3 box; https://www.roadsafetyregister.com.au/search.aspx). The findings of the Auditor's report shall be formally submitted to Council (as the roads authority) for its consideration and determination. The Council and its Local Traffic Committee shall provide its determination of the Auditors findings within 4 weeks of receipt. The Council's determination should include reasons for acceptance, modification or rejection of any or all of the Auditor's findings. 10. The experts agree that the below conditions should be included as part of the development consent, should the Court grant consent to either of the subject development applications: a. A Road Safety Audit (RSA) be undertaken by an independent and accredited Level 3 Road Safety Auditor of Urliup Road to identify hazards along the route between the site and Bilambil and recommend corrective works of current hazards. The RSA shall include the works conceptually shown in Annexure B. The findings of the Auditor's report shall be formally submitted to Council (as the roads authority) for its consideration and determination. The Council and its Local Traffic Committee shall provide its determination of the Auditors findings within 4 weeks of receipt. The Council's determination should include reasons for acceptance, modification or rejection of any or all of the Auditor's findings. The Council's rejection of any of the Auditor's findings should not detrimentally affect the development consent. b. Regular inspections of the condition of Urliup Road be undertaken of the structural integrity of the road within 600m of the site entry driveway due to concerns of the embankment potentially failing due to regular heavy truck usage / axle loadings close to the shoulder and edge drop off. The frequency and required scope/method of the inspections is a matter for the civil engineers to address. c. The Plan of Management shall be upheld and enforced throughout operation. d. Truck operations are not to take place between the hours of 8.00am to 9.30am and 2.30pm to 4.00pm on School Days, on Sundays and during public holidays. Supplementary Joint Experts Report - Traffic (Corbett and McLaren) - 24 June 2019 4

[41]

Traffic and civil engineering joint expert report

While the traffic engineers have agreed all matters in dispute as identified in the supplementary joint report set out above, some observations by the traffic engineers should be noted. Mr McLaren identified in par 29 of the first joint report (Ex 8) that the Council's garbage and recycling trucks of 9.5 metres in length travel along the full length of Urliup Road in a southerly direction only from Bilambil. These trucks deliberately do not travel at the same time for safety reasons. A local school bus of 7.5 metres travels on weekdays during school term in a southerly direction along Urliup Road. In his view the increased activity of 7.3 metre long rigid vehicles in both directions would create conflicts with general road users and garbage collection/school bus services. Mr McLaren also considered that if development consent was granted residents should have relief from water trucks from midday on Saturday as well as Sunday.
Annexed to the joint report were probability analyses conducted by Mr Corbett of the probability of one truck passing an opposing car along Urliup Road between the Site access and 39 Urliup Road (near Bilambil) under DA 1 and DA 2. Mr Corbett calculated this probability to be 4.92 percent under DA 1 and 26.81 percent under DA 2. Mr Corbett assumed an average travel speed of 50 kilometres per hour for trucks and cars because although a maximum speed of 100 kilometres per hour is permitted on Urliup Road, with all the narrow bends the actual average speed of vehicles is likely to be much less. He assumed Mr Hollyoak's traffic count (113 vehicles per day measured within the 600 metre segment of the Site for the purpose of previous proceedings) for the number of car movements.
The civil engineers contributed to the first joint report in Ex 8 in relation to the integrity of Urliup Road, disagreeing about the extent to which the road surface and structure was suitable for the proposed truck activity. Formal gravel or earth shoulders do not exist for the majority of the road with grass to the road pavement edge. Mr Purdon considered that for existing traffic where trucks and cars have to pass rutting of the side of the road or vegetation loss was not occurring. He considered that use of road shoulders would be infrequent and irregular in the location given Mr Corbett's probability analyses of when a car and a truck would pass each other. Urliup Road is a "Rural Class C-Class D" road. An assessment of the current pavement had not been undertaken and may not currently comply with current standards. That would normally be a responsibility of the local authority for the design and maintenance of the pavement for the expected use within the specified road hierarchy. The overall state of the road was in a reasonable condition considering its age.
In Dr Martens' view the increased traffic will place an additional equivalent standard axle (ESA) load on the road, an estimated increase of between 40-87 percent depending on the background traffic study used. No geotechnical testing of the existing road pavement has occurred and the nature, type and condition of the existing pavement is unknown. No information has been provided to determine whether the existing pavement within Urliup Road complies with the Council's minimum pavement thickness for rural roads whether Class C or Class D. The impact of the development on the existing road pavement is unknown. In relation to the embankment area within 300-500 metres of the Site identified at par 58 of the first joint report, any increased vehicular loading could exacerbate the risk of road embankment failure in that area. That potential increased risk to life and property has not been assessed. The increased ESA loading on Urliup Road would represent some 30-50 percent of the total ESA loading on Urliup Road. The development will therefore be a significant contributor to the road maintenance load.
The section identified by Dr Martens of about 150-200 metres, approximately 300-500 metres east of the Site is particularly narrow and bounded on the southern side by a very steep embankment that terminates on the bank of Bilambil Creek. Dr Martens considered the area should have been the subject of a detailed geotechnical investigation to determine embankment conditions and slope instability risk. That investigation should have informed a civil engineering design for road widening and safety barrier works required. Further as the road is narrow at a number of locations requiring passing traffic to use the shoulder there is a risk that the limited drainage system within the road shoulder will be degraded.

[42]

Cross-examination - traffic and civil engineering

Dr Martens and Mr Purdon civil engineers and Mr McLaren and Mr Corbett traffic engineers gave concurrent evidence.
The traffic engineers agreed that DA 2 which would involve the use of trucks up to 7.3 metres in length would not have an unacceptable adverse impact to the amenity and safety of the road in light of the rectification or upgrade works that the Applicant would undertake according to the proposed conditions. Mr Corbett stated (over objection from the Council that this opinion varied from the supplementary joint report) that road works would not be required to provide a safe outcome for DA 2 (which would involve up to 26 truck movements per day), but doing the works would achieve a safer outcome. The width of road tarmac is generally between 4-5 metres which complies with Austroads requirement for a width of 3.7 metres for a rural road with low traffic volumes.
Mr McLaren stated that it is not only important to have adequate clearance for a 7.3 metre truck and an opposing vehicle but also adequate intervisibility or sight distance so that both drivers can see one another. He recommended the installation of a guardrail along the portion of the road between points 1 and 2 (as marked in the diagram by Mr McLaren in the supplementary joint report at [115] set out above). Mr Corbett agreed that sight distance was an issue but that this could be resolved by the proposed safety improvement measures. Dr Martens stated that there were some trees in the bend between points 1 and 2 which could lead to sight distance issues.
Dr Martens was concerned about the geotechnical stability of the part of Urliup Road that narrows to 3.2 metres in width. Cars will likely have to stop on the road (for up to a number of minutes) to allow opposing vehicles to pass which could increase the risk of instability of the embankment. DA 1 and DA 2 would increase the number of trips made by trucks in a year and investigations need to be undertaken to determine the risk of instability. According to Dr Martens, the road is already unstable as he observed a number of instabilities between points 1 and 2 (marked in the diagram in annexure B in the supplementary joint report extracted at [115] above) along the upslope embankment and the downslope embankment where the embankment is caving and stormwater runs over the road which is causing erosion. If a road barrier was a requirement, this would need to be taken into account in any geotechnical assessment. Mr Purdon stated that any geotechnical assessment would examine the highest load that would be used on the road, which is unlikely to be the trucks travelling to and from the Site under DA 2.
Mr Purdon stated that the inclusion of trucks on the road does not materially change the risk of collision. The probability of a truck passing a car in the 200 metre zone identified by Dr Martens is very low. There will continue to be, regardless of whether either DA is approved, cars potentially travelling at higher speeds than trucks. Mr Purdon relied on Mr Corbett's probability analysis above at [117] over the 4.1 kilometre length of the road. Mr McLaren stated if DA 1 was approved it would mean that trucks would be operating for approximately 300 days each year, an increase from 64 days. Accordingly there would be a greater risk in terms of road safety under DA 1 because there is a single lane condition which occurs within the first 600 metres of the Site, and three single lane culverts in which only one vehicle can pass at any one time. Mr McLaren acknowledged that different civil engineers acting reasonably might reach different conclusions on this type of issue.
Concerning contention 7, integrity of the road pavement, Mr Purdon conducted an assessment of current traffic loads on Urliup Road and compared them to the Council's designations for rural roads, appendix H of the first joint report (Ex 8). The table contains thresholds known as ESAs which is a measurement used to compare larger trucks and vehicles larger than a passenger vehicle and reflect the impact that the additional axles on a large vehicle will have on pavement. He conducted a comparison for DA 1 and DA 2 to determine whether the impact of the proposed additional trucks was likely to have an additional load that would put the road classification into a higher class of road. The classification of roads depends on the annual average daily traffic and the maximum ESA. Mr Purdon concluded that the loading on the road in terms of trucks is within the acceptable range that the Council would expect for that classification of road.
Dr Martens stated that roads are classified from A to D to determine what pavement thickness is required for the traffic load, the ESA maximum. The table referred to in Mr Purdon's assessment merely indicates the design pavement thickness for a particular class of road. The pavement thickness and class of Urliup Road is unknown. Mr Purdon's analysis does not assist in determining whether or not the structural capacity of the road is adequate to deal with the proposed truck traffic.
Mr McLaren, referring to page 25 of the first joint report, emphasised that according to Austroads "Guide to Road Design Part 3 Geometric Design 2016", a minimum seven metre seal should be provided where the annual average daily traffic contains more than 15 percent heavy vehicles. According to Mr McLaren, under DA 1 there would be an exceedance of 15 percent heavy vehicles. Mr Corbett agreed that the 15 percent heavy vehicle threshold would be exceeded using Mr Hollyoak's traffic count (measured within the 600 metre segment of the Site), but it would not be exceeded where Mr McLaren's higher traffic count (conducted near Bilambil Village, 265-273 vehicles per day) is used. Mr McLaren stated that near the Site the figure is in excess of 15 percent (closer to 20 percent).
Concerning contention 8, safety, Mr McLaren stated that Mr Corbett's probability analyses described above at [117] do not address the specific risk at the locations identified in the seven drawings attached to the supplementary joint report as a result of inadequate site distance and road width.
Mr Corbett stated that in preparing the seven drawings annexed to the supplementary joint report he did not make any assumption about truck size. Mr McLaren said that a road safety auditor would need to incorporate the length of the trucks (7.3 metres) to conduct a proper assessment of the passing bays required.

[43]

Town planning joint expert report

The town planners Mr Turrisi for the Council and Mr Sinclair for the Applicant prepared a joint report dated 9 April 2019. They considered that DA 1, if granted, had an acceptable impact on the amenity of the area along the road from the Site into Bilambil. In relation to surrounding land uses, the planners agreed in the joint report that there would be limited areas for horticulture in the immediate area and any such activities would be of a size that was limited in operation. Truck movements relating to carrying cattle and horses are less frequent than those carrying horticulture products. They agreed these land uses would produce less traffic than the water bottling facility.
Mr Turrisi was concerned about DA 2 and the impact that the maximum permissible number of truck movements per day (26) would have on rural residential amenity along Urliup Road. DA 2 will have an impact on the rural amenity of nearby residents as Urliup Road is a local road that does not carry significant traffic volume (approximately 132 movements per day). Traffic volume would be unlikely to significantly increase due to other future land uses such as grazing. Mr Turrisi said that there are approximately seven dwellings which are within 25 metres from Urliup Road (supplementary town planning joint expert report). Mr Sinclair was not concerned about amenity impacts since there are other users of the road so that Urliup Road could not be described as a small cul-de-sac road. Traffic volume could increase due to residential and lifestyle uses along the road. Further, truck movements under DA 1 and DA 2 will be staggered throughout the day.
In relation to whether encouraging and facilitating primary production business on land contributes to the maintenance of the rural landscape character of the land (a zone RU2 objective), both town planners said that it depends on the nature of the DA.
Mr Turrisi stated that there was no adequate expert acoustic assessment that could inform his understanding of acoustic impacts on residents along Urliup Road. The Applicant's solicitor put to him that par 38 of the joint report states that the planners agreed that they had sufficient information to assess the DA. Mr Turrisi referred to a letter from the Council's manager of development assessment and compliance dated 1 February 2019 which stated that a noise impact assessment was considered necessary to assess potential noise impacts on surrounding land uses given the potential increase in total traffic noise level under DA 2.

[44]

Plan of management

The town planners, with input from the traffic engineers, agreed a plan of management concerning the movement of trucks attending the Site to collect water. A revised version was dated 3 July 2019. Matters to note include that the Applicant is not proposing to have trucks attend on Sundays and public holidays and between 8:00-9:30 am and 2:30-4:00 pm on school days. Trucks will not be able to enter the Site until 7:15 am.
Truck drivers are to travel along Urliup Road no faster than 50 kilometres per hour or at a lower speed to suit road and weather conditions. The plan of management also contains details about how trucks should enter and exit the Site inter alia. Trucks must come to the Site to fill the tanks in a staggered fashion as set out in the plan of management. Truck drivers are to adhere to a driver code of conduct when passing other vehicles along Urliup Road.
A copy of the plan of management will be provided to the trucking contractor with the instruction that it be provided to each driver and kept in each truck. When a new driver starts with the contractor, the driver is to complete two runs with a driver who has signed the plan of management and will then be required to sign the plan of management.
A process for how complaints about truck driver conduct should be handled is identified. The operator (undefined but assumed to be the operator of the water bottling facility) must promptly acknowledge recept of complaints. When a complaint is made, particular details must be recorded by the operator. Following consideration of the complaint, the operator must contact the complainant and advise them of the outcome of the complaint, reasons for the operator's decision and the remedy/resolution the operator has put in place. A complaints register must be maintained. Both planners proposed that a condition should be inserted into any consent incorporating the plan of management so that a breach of the plan of management would be an enforceable breach under the EPA Act.
The Council put to Mr Turrisi that the effectiveness of the complaint regime under the plan of management depends on the willingness of the operator to understand and respond to a particular complaint. In cross-examination, Mr Turrisi stated that the complaints section of the plan of management addressed these concerns.
The town planners also prepared a landscape plan dated 30 April 2019 which proposes planting 8-10 metre high trees endemic near the accessway and the turning loop at the Site to screen the water tanks. The planners agreed that if this plan is implemented, the existing structures on the Site will be consistent with the landscape character of the surrounding locality and will not have an unacceptable impact on the vistas and scenic values of the area.

[46]

Water extraction limit

The parties made conflicting submissions on whether DA 03/0445 limited water extraction to 5 ML/yr. The conditions of DA 03/0445 are set out above at [49]. The Applicant relied on references in the conditions to 10 ML/yr as suggesting that the development consent authorises an extraction of 5 ML/yr, and also authorises the extraction of 10ML/yr if certain circumstances arise. According to the Applicant this is clear from a reading of the following conditions: 1. "The authorised annual entitlement will not exceed 5 megalitres". 2. "The volume of groundwater extracted as authorised must not exceed 5 megalitres in any 12 month period commencing 1 July. The allocation will be reviewed if there is any change in the ownership of the land". 3. "The authorised annual entitlement will not exceed 10 megalitres". 4. "The volume of groundwater extracted as authorised must not exceed 10 mega litres". The above provisions were all part of the original terms of the development consent.
According to the Applicant the initial limitation of 5 ML/yr is qualified because the consent contemplates the possibility the operator can have more than 5 ML/yr, but definitely no more than 10 ML/yr. The upper limit of 10 ML/yr would be useless unless the Court interpreted the consent in this way. The Court should strive to give every word of the consent some meaning if it is at all possible to do so. The development consent, as originally granted, permitted only a single load of approximately 13,000 litres of water per day to be removed from the Site via a single movement to and from the Site (Karlos v Tweed Shire Council at [22] and [147]). This permitted only 4.745 ML to be extracted if the extraction occurs at the maximum extent (that is, 365 days a year). The effective extraction limit from the consent at the time it was granted was capped by the restriction on transport movements, rather than the 10 ML/yr limit specified in the conditions (Karlos v Tweed Shire Council at [164]).
The development consent anticipates reductions in allocations to prevent overuse in stating: The Department has the right to vary the volumetric allocation or the rate at which the allocation is taken in order to prevent the overuse of an aquifer.
This provision means that the opportunity to review the 5 ML/yr allocation (if there is a change in the ownership of land) should not simply be read as an opportunity to reduce an allocation. That would be unnecessary given this separate provision. The opportunity to review the allocation allows for an upward review, so long as the allocation does not exceed 10 ML/yr.
The existing development consent should be interpreted as allowing for between 5 and 10 ML of water to be extracted. For the 5 ML/yr entitlement to be exceeded under the existing development consent there must be a review following a change in ownership of the land, which the Applicant accepts has not occurred at this time.
No issue estoppel in submitting greater than 5 ML/yr arises from the judgment in Karlos v Tweed Shire Council. The matter in issue in that case was whether the development sought under a modification application was substantially the same as the original development. The Applicant relied on s 39(2)-(4) of the LEC Act. In Young v Parramatta City Council [No 2] (2002) 124 LGERA 361; [2002] NSWLEC 240 at [19], Lloyd J stated that questions of issue estoppel cannot apply in light of s 39(3) of the LEC Act. That case involved a hearing de novo in relation to a fresh application for a different purpose under a different planning instrument and under a different planning regime to that which applied previously, see also Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233; [1999] NSWLEC 239 (Mirvac Homes (No 3)) at [24].
Firstly, the applicant in the proceedings before Moore J was Mr Larry Karlos but the Applicant in the Order proceedings (in relation to which issue estoppel is raised by the Council) is Eniflat. The evidence shows that Eniflat is the owner of the Site. There is no basis to pierce the corporate veil, therefore Eniflat cannot be equated to Mr Larry Karlos. Any estoppel against Mr Larry Karlos does not affect Eniflat. Since the proceedings are being heard together, it is not open for the Court to adopt different interpretations of the development consent in the DA 1 and DA 2 proceedings and the Order proceedings. Issue estoppel is therefore not available in any of the three proceedings.
Secondly, the present proceedings do not traverse any essential elements in the previous cause of action (Mills v Cooper [1967] 2 QB 459 at 468 (Diplock LJ)), a legally dispensable conclusion in the previous case (Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464; [1939] HCA 23 at 532 (Dixon J)) nor anything necessarily resolved as a step in reaching the determination made in the previous judgment (Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [22]). The Court in Karlos v Tweed Shire Council was required to consider in accordance with s 4.55(1A)(b) and (2)(a) of the EPA Act whether the development, if the proposed modifications were to be approved, would be substantially the same development as that which had originally been granted development consent (at [5]). The Court made references to there being a maximum rate of extraction of 5 ML/yr for this purpose (at [3], [21], [60]-[62], [162] and [166]). However this was a reference to the current applicable maximum limits of the development consent as the 10 ML/yr entitlement can only come into effect following a change of ownership of the land and a review. The judgment does not suggest that the issue of the flexibility to move to the 10 ML/yr limit was raised with the Court.
Thirdly, the Court in Karlos v Tweed Shire Council had to decide whether it was "satisfied" that the development to which the consent as modified related was substantially the same development as the development for which the consent was originally granted. This did not involve determining the existence of an objective or immutable fact in the manner of traditional judicial decision-making.
The Council submitted that the 2003 consent is clear in stating that the limit is 5 ML/yr. Further the Applicant is estopped from submitting as it does as the findings of Moore J in Karlos v Tweed Shire Council on the construction of DA 03/0445 are binding on the parties. Moore J found that DA 03/0445 was limited to 5 ML/yr. The issue of the construction of DA 03/0445 in the DA appeals and the Order appeal is identical to that arising in Karlos v Tweed Shire Council. In order to determine the question whether the modification application was substantially the same development, Moore J was required to construe DA 03/0445 as first granted, see at [21], [60]-[62], [159]-[162]. His Honour construed DA 03/0445 in deciding whether he should take an "amber light approach" to the application before him: at [173]-[176]. The development is on the same land for the same purpose of water bottling facility.
Although Eniflat was not itself a party to the proceedings before Moore J, the close link between Mr Larry Karlos and Eniflat makes clear that Eniflat is controlled by Mr Larry Karlos. Eniflat is Mr Karlos' "privy" (see Mr Karlos' affidavit dated 23 March 2019 above at [57]). Any estoppel against Mr Larry Karlos in the DA appeals must also operate against Eniflat in the Order appeal.
The proper construction of a development consent is not a matter involving the exercise of a discretion, it is necessarily immutable. Moore J found no ambiguity in the annual volumetric limit being 5 ML. There was no appeal from his Honour's judgment. Moore J's construction of DA 03/0445 was a necessary step in applying the statutory test as to whether the consent as modified would be substantially the same development.
Even if the Court concludes that the Applicant is not precluded from advancing a construction of the consent different to that adopted by Moore J, as a matter of judicial comity, the Court should not reach a different view unless convinced that his Honour was clearly wrong: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820.

[47]

Number of bores permitted

Another issue of construction of the 2003 consent is the number of bores permitted. The 2003 consent was conditioned to be carried out in accordance with the relevant SEE, subject to the conditions (see condition 1 of consent above at [49]).
The Applicant submitted that the development consent conditions provided for and authorised the construction of new bores to be carried out under the Water Act. While the relevant SEE nominates one bore (see above at [51]-[52]) the statement is subordinate to the conditions according to the Applicant. This is reflected in the following text: 1. "The purposes of these conditions are to: ... specify the need to obtain a licence, permit or authority before commencing any works". 2. "Before commencing any works or using any existing works for the purposes of Commercial Mineral Water Bottling purposes an approval under Part 5 of the Water Act 1912 must be obtained from the Department". 3. "All works involving soil or vegetation disturbance shall be undertaken with adequate measures to prevent soil erosion and the entry of sediments into any river, lake, water body, wetland or groundwater system". 4. "The purpose of these conditions are to: set a limited time for bore construction". 5. "Works for the construction of bores must be completed within such a period as specified by the Department". 6. "The purposes of these conditions … are to specify the need to obtain a licence, permit or authority before commencing any works". 7. "Before commencing any works or using any existing works for the purpose of Temporary Dewatering for Construction Purposes ...".
Accordingly, it cannot be said that the use of more than one bore hole for commercial water extraction is not permitted. The consent construed as a whole envisaged the construction of additional bores. The Applicant submitted that these provisions contemplate the possibility of other bores being built under the terms of the consent. This is reinforced by the provision "[a]ll works involving soil or vegetation disturbance shall be undertaken with adequate measures to prevent soil erosion and the entry of sediments into any river …" and the stated purpose of the conditions for bores and wells to "set a limited time for bore construction". Works for construction of bores must be completed within such period as specified by the Department. If no new bores could be constructed under the consent, these provisions would have no work to do. The bore holes that have been constructed and are in use on the Site have been constructed and put to use under the above provisions of the existing consent.
The Council submitted the 2003 consent was clear. Only one bore was authorised as provided for in the SEE.

[49]

Water extraction limit under 2003 consent

The matter of issue estoppel should be considered first. The High Court in Tomlinson v Ramsey Food Processing Pty Ltd stated at [22] that issue estoppel "operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment".
Contrary to the Applicant's submission that issue estoppel does not arise in Class 1 merit appeals because of s 39 of the LEC Act, In Mirvac Homes (No 3) at [24] Lloyd J held that issue estoppel is capable of arising in a development appeal with a matter that had the following features: 1. the issue is identical with that which was heard and determined previously by the Court (at [14]); 2. the development is on the same land and is of the same kind as that which was the subject of the previous determination (at [14]); 3. the parties are the same as those who were before the Court in the previous determination (at [14]); 4. the previous determination was a separate determination of a question of law (at [22]); 5. the question in issue is not one which involves the exercise of any discretion (at [22]); 6. although s 39 of the LEC Act provides that the appeal is by way of rehearing the relevant facts are immutable (at [22]); and 7. the question which was determined previously was then and remains capable of finally and conclusively resolving the issue (at [22]).
Considering the various factors in Mirvac Homes (No 3), the primary issue before Moore J in Karlos v Tweed Shire Council was whether the modification sought approval for a consent that was substantially the same as the existing development. That required him to construe the 2003 consent on the same issue as arises before me. These development appeal proceedings concern the same land and development as Karlos v Tweed Shire Council. The parties are the same in the development appeals. No exercise of discretion is involved, the question is one of statutory construction. All the criteria identified in Mirvac Homes (No 3) apply here. Issue estoppel prevents the Applicant seeking to traverse the finding of Moore J in the earlier proceedings that the annual extraction limit is 5 ML/yr.
I did not entirely follow the Applicant's submission that as Eniflat and Mr Karlos are separate entities issue estoppel should not apply across all three proceedings. Eniflat and Mr Larry Karlos are closely related albeit separate legally. Eniflat was issued the Order the subject of the Order appeal. Most relevantly, the identical issue of the limit on water extraction under the 2003 consent arises also in the Order appeal. My finding in this part of the judgment will also apply in that context later in the judgment.
If I am wrong and issue estoppel does not arise I agree with Moore J's findings concerning the 5 ML/yr limit and therefore accept the Council's submissions on the construction of the 2003 consent. There are two clear and unambiguous references in the 2003 consent to the limit of 5 ML/yr. A limit up to 10 ML/yr only arises in certain circumstances. Even on the Applicant's construction the 10 ML/yr limit can only come into play if there is a change of circumstance namely a new owner. Given that DA 1 seeks an annual amount of 28.5 ML/yr and DA 2 close to 60 ML/yr, both well above 10 ML/yr, the Applicant's approach provides little assistance to its case.

[51]

Key issues for DA 1 and DA 2

Water bottling is a permissible use with development consent in the RU2 rural landscape zone under cl 7.15 of the TLEP. The Council has identified 10 contentions with extensive particulars as the basis for the refusal of consent for DA 1 and DA 2. Six key issues underpin these and the particulars overlap in several respects: 1. Incompatibility with character and objectives of the RU2 zone (contention 2). 2. Unacceptable rural residential amenity (including noise, visual impact, dust and conflict with other road users) from trucks on Urliup Road (contentions 1(b), 1(c), 9). 3. Safety impact of truck traffic on Urliup Road (contentions 1(b), (c), 6 (no suitable vehicle access, cl 7.10(e) of the TLEP essential services), 8 (safety)). 4. Integrity of Urliup Road (surface damage etc) (contentions 1(b), 7, 9(d)). 5. Unacceptable impact on natural surface and groundwater water systems (contentions 1(d), 3 (cl 7.15 of the TLEP), 5 (impact on surface and groundwater systems)). 6. Visual impact on rural landscape of tanks and filling station (contention 2(c)). The planners agreed that appropriate landscaping can be implemented to screen from Urliup Road the existing tanks and other infrastructure the subject of the building application. Having viewed the Site I accept that opinion.
Contention 10 identifies insufficient information as an issue. My understanding is that in the course of these proceedings greater detail was provided about the current operations of the existing water bottling facility. To the extent there is a remaining allegation of insufficient information in relation to hydrology that will be considered in that context.
As the consent authority in this appeal the Court must also have regard to s 4.15 of the EPA Act. No additional matter requires consideration beyond the issues raised by the parties. An applicant for development needs to persuade the Court that the impacts of a particular development are acceptable in the circumstances.
Before considering the Council's contentions as now identified in [167] above, contention 4 identifies the Rural Lands SEPP which was ultimately relied on by the Applicant as supporting the DAs and I will consider that first. The Rural Lands SEPP, now repealed, continues by virtue of transitional provisions. The objects are set out in [9] above. The Applicant submitted that the water extraction use assists in the promotion of the objectives of the RU2 rural landscape zone and the aims of the TLEP (to encourage sustainable primary industry production and the local economy more broadly) as, based on Mr Larry Karlos' evidence above at [58], the income from the water extraction business is essential for the primary production aspects of the business to continue. The Applicant submitted the Rural Lands SEPP in cl 2(a) and cl 7 "Rural Planning Principles" promotes opportunities for current and potential sustainable economic activity in rural areas inter alia. The Council did not ultimately rely on the Rural Lands SEPP as its concerns were covered under other contentions.
It is difficult to give any weight in a planning sense to the Applicant's submission relying on the Rural Lands SEPP that income from the water bottling facility assists in keeping a primary production use afloat on the land. Deriving an income from a proposed development is not generally a merits consideration considered under s 4.15 of the EPA Act. That the Applicant has built up his business of itself provides no justification in a planning sense for continuing or expanding the current level of use. The Applicant's submission that the income derived from the water bottling operation subsidises the primary production use of the Site is essentially a neutral matter in these circumstances.
Another matter to identify is that much of the Applicant's income from the business arises from a level of extraction and mode of operation not permitted by the 2003 consent, given my findings above on the limits of the 2003 consent in relation to water extraction and of one bore being approved. It is instructive to consider Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 which at [20] states: In Kouflidis v Salisbury City Corp (1982) 29 SASR 321 at 323-324; 49 LGRA 17 at 19-20 King CJ, with whom Mohr J agreed, sitting as a Full Court of the South Australian Supreme Court, stated: In my opinion, moreover, the past unlawful use is not a relevant factor in determining whether consent should be granted. That decision should be made upon the planning considerations envisaged by the Act and Regulations irrespective of the past or continuing conduct of the applicant. I do not think there is any warrant in the Act or Regulations for refusing or deferring an application or appeal by reason of the unlawful conduct of the applicant. … The unlawful user of the land should gain no advantage from having established an unlawful use. Any argument based either directly or indirectly upon the unlawful use should be firmly rejected. For instance, the argument put in the present case that the patronage given the unlawful business by the public indicates a local demand for the facility and is a consideration in favour of planning consent, should be rejected as an attempt to gain an advantage from the unlawful use by erecting an argument on the basis of that unlawful use. Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularized leaving the past unlawful conduct to be punished by penal sanctions. …
That there is a demand for the water from the water bottling operation, a matter referred to by a number of supporters of the Applicant summarised above in [84], [86]-[87] can be given little weight, as identified in Kouflidis v Salisbury City Corp (1982) 29 SASR 321.

[53]

(b) Rural residential amenity - traffic noise, visual amenity, dust and conflict with road users (contentions 1(b), 9)

Underpinning the various issues concerning truck traffic is the current state of Urliup Road in the 4.1 kilometres of public road between the Site and Bilambil. It is a winding, narrow-to-very-narrow road in a quiet rural area. As Mr McLaren traffic engineer identified the section of Urliup Road in issue between the Site and Bilambil has a single lane within 600 metres of the Site and three other single lane culverts where only one vehicle can pass (see [125] above). The sight lines at several of these locations are poor. Traffic noise, visual amenity impacts from the trucks, dust and conflict with road users are identified as issues relevant to this contention by the Council.
Truck noise was an issue identified during the view by objectors who live in the area of Urliup Road. The rural area surrounding the Site extending 4.1 kilometres into the village of Bilambil is very quiet and several residents live close to the road (supplementary town planning joint expert report, see at [132] above). As the Council submitted I have no expert evidence concerning the noise levels of the trucks currently using Urliup Road on the several houses near Urliup Road. While the town planners in their joint report agreed that the amenity impacts of DA 1 were acceptable, in the absence of that evidence it is difficult to see how they were able to form such a view. Mr Turrisi had reservations about the amenity impacts from the increased truck traffic which would result from DA 2. In oral evidence Mr Turrisi identified that the Council sought an acoustic report for DA 2. I infer that none was provided as there is no such document in evidence. Although the town planners stated orally that they understood the present level of permissible truck traffic was up to 12 trips per day 64 days per year and this would increase to approximately 303 days per year if either DA is approved, a substantial increase from the perspective of Urliup Road residents, that was essentially unremarked on in their evidence. I did not find the town planners' evidence to be of much assistance in assessing the nature of the likely impacts of the truck traffic along Urliup Road on rural amenity if either DA was approved.
A number of submissions from resident objectors identify the adverse amenity impacts on them resulting from the existing truck traffic which commences early in the morning often well before 7:00 am. Inevitably if the first truck is able to access the Site at 7:00 am that truck will be travelling along Urliup Road earlier than 7:00 am. I consider this further below in relation to proposals for a plan of management for truck drivers. Contrary to the Applicant's solicitor's submission that I should have little regard to such evidence as it was unsworn it was demonstrably legitimate when the view was undertaken.
The Applicant accepted in the course of the hearing that there should be no truck movements on Sundays and public holidays. That leaves most days of the week when conflict with other road users could occur. Several objectors made statements summarised above at [78]-[82] about the existing conflict with other road users such as walkers, cyclists and horse riders, as well as car drivers, with the current rate of truck trips of 12 per day due to the numerous blind corners and hills and single lane only causeways along Urliup Road. Several referred to close-calls in terms of near accidents. Problems also occur when two trucks need to pass each other on the narrow road which occurs frequently. Several residents also referred to student safety concerns in relation to the school bus collecting and depositing students along Urliup Road and near the school in Bilambil when students are being dropped off and collected, see particularly the summary at [82] above.
While Mr Corbett undertook a probability analysis which sought to identify the theoretically limited number of times there would be potential for overlapping vehicles under DA 1 and DA 2 (see above at [125]), such evidence does not assist greatly in understanding the level of risk of collision given the several troublesome locations along Urliup Road. The traffic engineers identified nine locations where road safety works were required (see [115] above). There is clearly potential for greater conflict with other road users if truck numbers are increased from 64 days per year to 303 days per year with DA 1, and to a greater extent again given increased daily truck movements with DA 2, as Mr McLaren stated.
Given the low volume of traffic on Urliup Road as identified by traffic engineers in the context of an earlier DA involving this site (Mr Hollyoak's count) compared to Mr McLaren's traffic count measured at Bilambil village (see above at [117] and [128]), the amount of truck traffic under DA 1 and more so under DA 2 would comprise a large part of the truck traffic along Urliup Road. The Applicant relied on the presence of the school bus and the garbage truck as examples of other large vehicles using the road regularly as supportive of his case. Mr Matthew Karlos' affidavit above at [72] refers to large trucks including council vehicles using the Site to turn around. He refers to four specific occasions, suggesting such occurrences are relatively infrequent. As identified by Mr McLaren above at [116] the recycling and garbage trucks travel in one direction only and avoid operating at the same time. They are far less frequent than the proposed daily truck traffic under DA 1 and DA 2 driving in both directions along Urliup Road. The school bus operates only during school term. The frequency of the recycling and garbage trucks is unknown but I expect it is likely to be weekly. I do not expect these services would operate on weekends. Consequently the only regular truck traffic on Saturdays will be from this business.
The Applicant has undertaken to seal the driveway as part of the conditions of consent (statement of commitment dated 15 April 2019) to reduce the amount of dust from the unsealed driveway at the Site. While that addresses one of the amenity issues of dust, there are substantial remaining issues concerning traffic management and truck noise.

[54]

Before considering traffic issues further, a statutory construction issue arose in relation to the relationship, if any, between cl 7.10 (specifying matters which must be satisfied before development consent can be granted, such as suitable vehicular access (subcl (e)) and cl 7.15 of the TLEP. The Applicant emphasised that cl 7.15 provides expressly that water bottling is permitted with consent in the RU2 rural landscape zone despite any other provision of the TLEP, which he submitted must include cl 7.10(e). Active consideration by the Council resulted in cl 7.15 being introduced in 2016. If other uses permitted in the RU2 zone are considered such as airstrips, animal boarding or training establishments, extractive industries, industrial retail outlets, transport depots and open cut mining, other traffic generating development could be located at the Site in theory.
The Council submitted that as a matter of statutory construction cl 7.15 did not exclude "suitable vehicular access" in cl 7.10(e). The TLEP must be read as a whole and cl 7.10 applies independently of cl 7.15. Hypothetical DAs for other uses that happen to be permissible with development consent in the RU2 zone are of no assistance in construction.
When the TLEP is read as a whole I consider the Council's construction is preferable namely that cl 7.10 does operate independently from cl 7.15. That a variety of uses is permissible in the RU2 zone, and theoretically at this site, does not assist in applying the TLEP to this particular development on the issue of traffic generation. In other words, that other developments which may generate traffic are permitted in the zone cannot assist in resolving whether the traffic impacts of this development are acceptable.
Not a great deal arises from my finding that cl 7.10(e) applies to DA 1 and DA 2 as these must in any event be assessed on the merits in the location proposed as required by s 4.15 of the EPA Act. Given the issues identified by the Council and the location of the water bottling facility, suitable vehicular access (which cl 7.10(e) identifies as a pre-requisite to development) is a merits issue which must be considered.
There are two aspects of road safety to consider, the physical state of Urliup Road given its location and truck driver behaviour on Urliup Road.
In order to make the road physically safer the traffic engineers stated in their further joint report (see supplementary joint report extracted in full above at [115] with some figures omitted) that the Applicant must undertake specified work in nine locations along the road between the Site and Bilambil Village with concept plans for the work attached to the report at annexure B, if development consent is granted for either DA 1 or DA 2. They agreed that as the plans prepared are concept only, a road safety audit (RSA) by a suitably qualified ("Level 3 Road Safety Auditor") expert should be undertaken to review and assess the concept plans including recommending changes. Four recommended conditions of consent are identified in par 10 of the report to the effect that the necessary RSA be undertaken and what action the Council as the relevant roads authority must take after its receipt, such as determination of what work would be required within four weeks of receipt and that the Council must give reasons for its decision to accept, modify or reject any or all of the auditor's findings. Rejection of any of the auditor's findings should not detrimentally affect development consent (par 10(a)); regular inspections on the condition of Urliup Road must be undertaken within 600 metres of the Site entry due to concern about embankment failure (par 10(b)); the plan of management must be enforced throughout the operation of the business (par 10(c)); and truck operating hours are limited (par 10d). A change to the plan of management was proposed in par 11 to further restrict truck speeds to no faster than 50 kilometres per hour on straight segments and reduced speeds to suit road and weather conditions where visibility is poor.
The Applicant accepted that there were safety issues with trucks using Urliup Road in light of the evidence of the traffic engineers in their supplementary joint report. The Applicant submitted that with appropriate conditions incorporating the plan of management and the recommendations of the traffic engineers, DA 1 and DA 2 can be granted consent. As identified in the statement of facts there is a sign on the outskirts of Bilambil Village stating "WARNING This road is not suitable for heavy vehicles". The signage for use on roadsides by road authorities under the Road Rules 2014 to restrict vehicles above a certain size was indicative of the measures that the Council could have taken to exclude trucks above a certain size from the road. The existing warning sign is not one of these. In the absence of the Council erecting such signage, the Applicant submitted, trucks of the size proposed were acceptable on Urliup Road.
The Applicant's draft conditions propose that DA 1 be approved now with provision for DA 2 to come into operation subsequently. The conditions were largely copied from the supplementary joint report as summarised above in [188]. Draft condition 29 in the proposed conditions of consent for DA 2 states that subject to obtaining the necessary consent under s 138 of the Roads Act, within 24 months of the consent becoming operational the Applicant must undertake improvements at critical points along Urliup Road between the Site and Bilambil. Once the improvements are implemented DA 2 could come into operation with the consequential increase in truck traffic. According to the Applicant, doing these works is not essential for DA 1 given that the number of daily trips sought is the current number of 12.
The Council submitted that given the agreement of the traffic engineers in the supplementary joint report that road safety work was required, neither DA 1 nor DA 2 can be granted development consent due to the road safety issues posed by the increase in truck traffic proposed. If development consent was granted for either DA 1 or DA 2 the Council proposed deferred commencement conditions which provided for the RSA report to be commissioned and provided within three months to the Council, the Council to report within four weeks of its consideration of the RSA such as rejection, acceptance or modification and the Applicant to undertake the work to the Council's satisfaction. The consent for DA 1 or DA 2 would not commence until the work had been carried out to the Council's satisfaction. Presumably if the Council does not accept the report and/or is not satisfied about the work undertaken then the consent cannot commence.
Incorporating the scheme proposed in the supplementary joint report in the draft conditions of consent whether as deferred commencement conditions (Council) or as operational conditions (Applicant) is in my view unworkable when the principle in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison) is considered. Clarke JA held in Mison at 740 (Meagher JA agreeing) that: [w]here a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final.
The draft conditions do not provide a certain outcome on traffic safety measures in terms of the physical state of Urliup Road and consequently impermissibly postpone assessment and implementation of a very important aspect of the development which requires mitigation. In my view the Court does not have power in a development consent to compel by condition of consent how a road authority, here the Council, can exercise its powers under s 138 of the Roads Act. The scheme proposed by the traffic engineers is unworkable in both a legal and practical sense under the EPA Act.

[55]

(d) Integrity of Urliup Road (contention 7)

The Applicant submitted that the volume of truck movements from the Site under either DA would not have a measurable detrimental impact on the road pavement, relying on the evidence of Mr Purdon concerning pavement classifications under the Austroads system. As Dr Martens submitted there is no information before the Court about the existing pavement width of the road, in the absence of which it is difficult to make any finding about the impact or lack of impact of additional truck traffic on Urliup Road.
Regular inspections of the section of Urliup Road within 600 metres of the Site entry driveway where there is concern about the embankment failing due to heavy truck usage are recommended by the civil engineers.
The requirement for safety barriers to be located at two locations is a matter the civil engineers have considered. Dr Martens in particular considered such a barrier was necessary in the location some 600 metres from the Site entry (see above at [120]).
A further proposed deferred commencement condition concerned safety barriers to the effect that the Applicant must provide approval for road safety barriers prepared by a qualified civil engineer with "NER" accreditation to be installed between locations O and P as depicted in the key map in the supplementary joint traffic engineers report (Ex 17 extracted above at [115]), to be completed at the Applicant's expense in accordance with the Council's approval. A geotechnical investigation to determine the risk of embankment failure along the portion of Urliup Road between 300-550 metres to the east of the Site entrance identified as between points 1 and 2 in the diagram in the supplementary joint report at [115] above with various matters to be considered is also to be required.
A further condition proposed that civil engineering plans are to be prepared and submitted to the Council for review and approval for any road works arising out of the geotechnical investigation or any road safety requirements. I do not consider such a condition is workable in view of Mison considerations outlined at [192] above.
Having viewed Urliup Road, it is clearly unsuitable for the type and volume of truck traffic the water bottling facility requires at present. I am strengthened in that conclusion by the traffic engineers' supplementary joint report. There are a number of single lane narrow sections of road, several with poor sight lines. The supplementary joint report confirms that the truck traffic volume for DA 1 and DA 2 is not suited to Urliup Road in its present state between the Site and Bilambil. While Mr Corbett stated in oral evidence that the road was safe in its present state for DA 1, that statement contradicted the agreed position in the joint report that roadwork as specified in nine locations was necessary to ensure traffic safety for both DAs. Given that contradiction I do not accept his oral evidence in the absence of leave being sought to vary his opinion from the further joint report. The integrity of the pavement and lengthy embankment in one location close to the Site was also identified by the civil engineers particularly Dr Martens as of concern and I accept his evidence in that regard.
In terms of driver behaviour, an important aspect of road safety, the Applicant proposes as a condition of consent a draft plan of management prepared by the town planners with input from the engineers summarised above at [135]-[138]. The draft plan requires trucks not to arrive at the premises before 7:15 am, staggers travel times so that trucks do not overlap, requires trucks to avoid school bus hours of operation, has a system for recording complaints and the response to these and provides for drivers to be notified of the plan of management inter alia.
In Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (Renaldo Plus 3), Brown C at [116] set out the following planning principle with respect to a plan of management: In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?
This planning principle was subsequently revised in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 (Amazonia) by Pearson C at [72] to the effect that the sixth question in Renaldo Plus 3 was re-worded as, "Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent?".
The plan of management meets some of the requirements in Renaldo Plus 3 and Amazonia in that it addresses the proposed use, the truck drivers will be informed about its contents, there is a complaint management procedure and it is intended to be enforced as a condition of consent. There does not appear to be a mechanism for updating the plan. I do have concerns about the extent to which compliance with the plan of management can be achieved. The truck drivers are not under the direct control of the Applicant but under the control of an independent contractor. Enforcement of the plan of management and the driver code of conduct relies on instructions to the truck drivers from the Applicant through to the contractor. How complaints regarding unsafe driving practices are handled in terms of any response is unclear apart from keeping a record of complaints of any such incidents. The extent to which there can be enforcement action in these circumstances is unclear.
While the plan of management drafted by the planners is intended to overcome the current resident complaints about truck impacts I am not convinced that it will provide sufficient protection for residents between the Site and Bilambil given the poor state of the road in this location.

[57]

(e) Natural water system impact (contention 5)

As the Council submitted cl 7.15(1) requires that a consent authority be satisfied before granting development consent for a water bottling facility that it will not have an adverse impact on natural water systems or that it will not have an adverse impact on the potential agricultural use of the land. As I have determined that DA 1 and DA 2 should not be approved because of traffic safety, adverse impact on the rural character of the area and amenity concerns I do not need to resolve if the requirements of cl 7.15(1) are met. Part of the justification in the Council's Order appeal is the impact or potential impact on groundwater systems from the existing water bottling facility. I will make some observations based on the extensive evidence I have heard but do not need to make any final findings on this topic.
There was disagreement between the hydrogeologists about the acceptability of impact of the existing and proposed extraction of water. Dr Martens hydrogeologist for the Council considered that insufficient information had been provided to enable the necessary level of satisfaction required by cl 7.15(1). Two particular issues arise, firstly, whether there is hydrogeological connection between the groundwater which is being extracted and the surface water and, secondly, whether there is an appropriate separation distance between the extraction bores and the sewage management system.
The Applicant submitted that Mr Neame's evidence should be preferred to Dr Martens. Mr Neame is a full-time hydrogeologist who has not spread himself thinly across many different disciplines as Dr Martens has done. Mr Neame's opinion that it would be extraordinary if the groundwater beneath the Site connected to the creek is based on a strong line of evidence including microbiological testing and bore logs. Mr Neame's evidence has been peer reviewed by DPI Water. This is supported by DPI Water and WaterNSW correspondence above at [97]-[98] which demonstrates that DPI Water took residents' concerns about the impact of the Applicant's water extraction seriously. As the Council submitted, Dr Martens has extensive expertise in a range of disciplines. Based on his qualifications, his evidence should not be diminished against that of Mr Neame.
There has been no physical testing of the alluvium and its permeability. According to Dr Martens, the material that exists at a regional level in terms of testing of the alluvium suggests that the permeability is likely to be substantially higher than what Mr Neame suggested.
Mr Neame's opinion is primarily based on his findings outlined in the Eco Logical report based on one sample period in November 2016. This is the only comparative water sample that has been undertaken otherwise he placed reliance on bore records. DPI Water's email supporting the findings of the Eco Logical report is no more than a high level review of the report without independent analysis. Dr Martens submitted that DPI Water's analysis is directed to wider catchment assessment rather than the specific micro assessment of the locality and only took the report at face value. According to Dr Martens' evidence above at [104], which was confirmed by Mr Neame, it would have been relatively simple for the Applicant to conduct a test to confirm whether there was a connection between the surface water and ground water.
Regarding the proximity of the Applicant's onsite sewage management system to the bores, the Applicant submitted that the recommended buffer in the DLG and DEC guidelines of 250 metres is not a fixed rule. Buffer distances are only to be applied when appropriate and advice must be sought from a hydrogeologist. Advice has been sought from a hydrogeologist (Mr Neame) which is that the circumstances make it acceptable for the recommended buffer distance to not be complied with. There has been no contamination of bore water over a 14 year period.
Considering the above submissions and the evidence on which these are based, any future applicant should consider the need to rule out any adverse impact on natural water systems in accordance with cl 7.15 of the TLEP. The extent to which DPI Water assesses impacts on local catchments when issuing bore licences is unknown on the evidence before the Court. Dr Martens' opinion is that the focus of DPI Water is on wider catchment assessment rather than localised impacts. The departmental emails summarised above at [97]-[98] do suggest a desktop review at best. The Court gains little comfort from the departmental emails relied on by the Applicant in the absence of any documents or other evidence of what precisely the departmental hydrogeologist considered.
I agree with Dr Martens that the extent of testing relied on by Mr Neame to draw his conclusions about lack of connectivity is minimal. Given the relatively straightforward testing that both hydrogeologists agreed can be done to check if there is a connection between the surface and groundwater systems at and near the Site, it is appropriate that this be done in relation to any future DA. In relation to buffer distances from the sewage system the guidelines contemplate lesser distances where appropriate advice is obtained, as it has been from Mr Neame.

[58]

Development control order appeal (proceedings 2018/384157)

I have refused development consent for DA 1 and DA 2. It is therefore necessary to consider the Order appeal including in light of the existing 2003 consent which the Site continues to benefit from.
The Order dated 12 December 2018 served on Eniflat is in the terms of Orders 1 and 3 in Sch 5 Pt 1 of the EPA Act being a Stop Use Order and Demolish Works Order. It states: Stop Use Order 1. Cease using the bores identified as 30WA308262, 30BL183219 and 30BL185414 shown on the aerial photograph attached and marked "A" for extracting and pumping ground water into storage tanks, delivery trucks or for commercial purposes. 2. Cease using the five (5) blue tanks located south-west of the dwelling on the land for the purpose of storing ground water extracted from any bore located on the land. 3. Cease allowing deliveries of mineral water to occur before 7.00am and after 6.00pm Monday to Friday and before 8.00am and after 6.00pm Saturday and Sunday, contrary to condition 2B of DA 03/0445 as modified. 4. Cease using or allowing the use of delivery trucks greater than six (6) metres in length contrary to condition 3 of DA03/0445 as modified. 5. Cease authorising or receiving daily delivery movements of more than twelve (12) trips per day contrary to condition 4B of DA03/0445 as modified. 6. Cease the extraction of groundwater from the land in excess of the five (5) megalitre annual entitlement in any twelve (12) month period commencing 1 July contrary to the general terms of approval under section 116 of the Water Act 1912 contained in DA 03/0445 as modified. Demolish Works Order 7. Demolish and remove from the land the covered structure, pipes and other equipment located on the access road west of the dwelling on the land used for pumping water extracted from the land into delivery trucks. 8. Demolish and remove from the land the five (5) blue tanks located south-west of the dwelling on the land.
The Court's powers on appeal are identified in s 8.18(4) of the EPA Act.

[59]

Statement of facts and contentions

The SOFAC filed by the Council on 5 February 2019 in the Order appeal proceedings provides: PART B: CONTENTIONS 1. Orders No. 1 and 2 of the Stop Use Order should be confirmed and the appeal dismissed as the construction and use of the identified bores and tanks is not authorised by a planning approval, is being carried out in contravention of an existing planning approval and may have an adverse impact on natural water systems including surface and groundwater related impacts. Particulars (a) The only development consent relating to the site that authorises the construction and use of bores and infrastructure in association with commercial water extraction is Development Consent DA03/445 (as modified). (b) Condition 1 of the development consent relevantly provides: "1. The development shall be completed in accordance with the Statement of Environmental Effects and accompanying plans prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003; except where varied by these conditions". (c) The Statement of Environmental Effects prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003 describes the infrastructure associated with the proposal as relevantly including: • existing bore, located approximately 150 metres from the pool shed (bore licence No. 30BL 179893 issued by the Department of Land & Water Conservation, 25 January 2002) see Appendix A. • pool shed, part of Building approval 1221/95 issued by Tweed Shire Council, 1 November 1995. • 30,000 litres plastic storage tank (see Photoplate 1). (d) The single storage tank is shown to be located within the pool shed (as shown in Figure 1 above, which is the extract of Figure 2 in Appendix C to the Statement of Environmental Effects prepared by Jim Glazebrook & Associates Pty Ltd dated March 2003). (e) Presently occupying the site are 3 additional bores identified as 30WA308262, 30BL183219 and 30BL185414, and five (5) blue tanks located south-west of the dwelling on the land used to store ground water extracted from any bore located on the land. (f) The development consent does not authorise the construction and use of the bores identified as 30WA308262, 30BL183219 and 30BL185414 or authorise the construction and use of the five (5) blue tanks located south-west of the dwelling on the land for the purpose of storing ground water extracted from any bore located on the land. (g) The construction and use of the identified bores and tanks is not authorised by a planning approval and is being carried out in contravention of an existing planning approval. (h) The use of the identified bores and tanks for the purpose of harvesting and bottling mineral water results in the authorised annual extraction limit of 5 mega litres being exceeded. 2. Orders No. 3, 4 and 5 of the Stop Use Order should be confirmed and the appeal dismissed as the failure to comply with Conditions 2B, 3 and 4B of Development Consent DA03/445 (as modified) is in contravention of a planning approval and causes an adverse impact on adjoining landowners, other users of Urliup Road and Urliup Road itself. Particulars (a) The only development consent relating to the site that authorises the extraction of water for commercial purposes is Development Consent DA03/445 (as modified). (b) Conditions 2B, 3 and 4B of Development Consent DA03/445 (as modified) are not being complied with in that deliveries are occurring on the land outside of the hours authorised by condition 2B of the development consent, delivery trucks attending the land and receiving water are greater in length than six (6) metres and daily delivery movements of greater than twelve (12) trips per day are occurring. (c) The operations described above are in contravention of a planning approval, is [sic] therefore a breach of the Environmental Planning and Assessment Act 1979 and is unlawful. (d) Non-compliance with condition 2B is likely to have an unacceptable adverse amenity impact on residents on Urliup Road as a result of noise generated by the movement of trucks in taking deliveries outside of the approved hours of operation. (e) Non-compliance with condition 3 causes an unacceptable adverse impact to the amenity and safety of road users of Urliup Road who will be unable to safely pass trucks greater than 6m in length having regard to the pavement width of Urliup Road, and which cannot safely negotiate the tight bends along Urliup Road. (f) Non-compliance with condition 4B is likely to have an unacceptable adverse amenity impact on residents and road users of Urliup Road, as an increased number of truck movements is inconsistent with the rural landscape character of the RU2 Zone and increases the risk of danger to other road users. Furthermore, additional movements are likely to further degrade the structural integrity of Urliup Road, particularly where combined with non-compliance with condition 3. 3. Order 6 of the Stop Use Order should be confirmed and the appeal dismissed as the extraction of groundwater on the land in excess of 5 mega litres in any 12-month period commencing 1 July each year is not authorised by a planning approval, is in contravention of a planning approval and may have an adverse impact on natural water systems, including surface and groundwater related impacts. Particulars (a) The only development consent relating to the site that authorises commercial water extraction is Development Consent DA03/445 (as modified). (b) The development consent contains the following condition under the sub-headings "General Terms of Approval under Section 116 of the Water Act 1912" and "Conditions relating to water entitlements": "The authorised annual entitlement will not exceed 5 mega litres." (c) Under the sub-heading "Conditions for Bores and Wells" of the development consent there is a further condition: "The volume of groundwater extracted as authorised must not exceed 5 mega litres in any 12 month period commencing 1 July. The allocation will be reviewed if there is any change in the ownership of the land." (d) Based upon the permitted amount of daily delivery movements and permitted size of the delivery trucks if twelve (12) trips per day were to occur then the extraction limit of five (5) megalitres per year would be exceeded in sixty-five (65) days. If more than twelve (12) trips per day is occurring and trucks larger than six (6) metres are being used then the annual extraction limit of five (5) megalitres would be exceeded in less than sixty-five (65) days. (e) Council has been provided with evidence in support of complaints that the Applicant has not been complying with the maximum length of delivery trucks permitted, or the maximum number of daily delivery movements permitted by the development consent. (f) In circumstances where the five (5) mega litres per year extraction limit commences on 1 July each year it is likely that the extraction limit will be exceeded before the end of September in that same year. An exceedance of the extraction limit of five (5) megalitres per year is a breach of the relevant condition of the development consent, is a breach of the Environmental Planning and Assessment Act 1979 and is unlawful. (g) The extraction of groundwater on the land in excess of 5 mega litres in any 12-month period commencing 1 July each year is not authorised by a planning approval, is being carried out in contravention of an existing planning approval and may have an adverse impact on natural water systems including surface and groundwater related impacts. 4. Orders No. 7 and 8 of the Demolish Works Order should be confirmed and the appeal dismissed as the covered structure and associated pipes and equipment and five (5) blue tanks require planning approval and have been erected without planning approval. Particulars (a) The covered structure and associated pipes and equipment and five (5) blue tanks are buildings or structures that require development consent for the construction and use. (b) The only development consent relating to the site that authorises the construction and use of any structures in association with commercial water extraction is Development Consent DA03/445 (as modified). (c) The development consent does not authorise the construction and use of the covered structure (filling station) and associated pipes and equipment and the five (5) blue tanks located south-west of the dwelling on the land for the purpose of storing ground water extracted from any bore located on the land and there is no other development consent authorising their construction. (d) Use of the covered structure (filling station) and associated pipes and equipment and the five (5) blue tanks facilitates an unauthorised use of the land, being the extraction of groundwater on the land in excess of 5 mega litres in any 12-month period commencing 1 July each year. Continued use of this infrastructure for that purpose may result in adverse impacts on natural water systems including surface and groundwater related impacts.

[60]

Evidence

Emails and letters from anonymous senders were received by the Council outlining concerns and providing evidence that the water trucks used by the Karlos family had breached the modified development consent DA 03/0445.
A formal complaint emailed to the Council dated 7 January 2018 stated that the conditions of operation for water truck movements were Monday to Friday 7:00 am to 6:00 pm and Saturday and Sunday 8:00 am to 6:00 pm. These conditions were constantly being breached. Further, nine trips were recorded per day, in breach of the condition of six trips per day.
A letter dated 19 January 2018 provided a log made between 10 December 2017 and 16 January 2018 of the number of trucks on Urliup Road before the permitted starting time for operation and the number of truck trips per day. For each day, at least one truck was recorded on the road before the permitted starting time of 7:00 am, with some trucks observed on the road as early as 5:30-6:30 am. On several days, 7-9 truck trips were observed.
An email dated 4 February 2018 attached several photographs depicting trucks on Urliup Road between 6:30-6:40 am on 31 January and 2 February 2018. There are also photographs depicting trucks of 6.5, 6.7 and 7.1 metres in length on a road on 3 February 2019. One of the trucks is labelled "Ross's Water Deliveries".
Two photographs dated 19 February 2018 depict trucks on the road near the Site between 6:39-6:52 am. A photograph dated 19 February 2018 depicts one truck at the filling station and another that appears to be driving away from the Site at 6:54 am. Three photographs dated 20 February 2018 depict a truck near the Site at 6:37 am, a truck that appears to be driving away from the Site at 6:54 am, and a truck entering the Site at 6:56 am.
Eniflat submitted that the Court should give little weight to this evidence. The material was unsworn and consequently not able to be tested. The emails containing the complaints and photographs were anonymous. The normal course for a council seeking to convince the Court that there is evidence of wrongdoing is to read an affidavit of a council enforcement officer. Merely because trucks are photographed as being on Urliup Road before 7:00 am does not mean they were on the Site at this time. Whilst the photographed trucks have the appearance of water trucks, there is no evidence confirming this to be the case. They could be dairy trucks, for example. It is unclear who took the photographs and whether the timestamps on them are legitimate or were added after the photographs were taken.
At the hearing the Council's submissions about the necessity for the Demolish Works Orders in Orders 7 and 8 (par 4 of the SOFAC) were essentially neutral. The Council otherwise submitted that the Stop Use Orders ought to be made.
Eniflat relied on Mr Matthew Karlos' affidavit dated 23 March 2019 and Mr Larry Karlos' evidence concerning current operations of the water extraction business summarised at [59]-[69] above. Mr Matthew Karlos also stated in his affidavit that Order 1 issued to Eniflat would adversely impact on the current operation as extracting water from bore 2 is necessary to ensure that the business is viable. Order 2 would also be detrimental to the business since the five blue tanks referred to in Order 2 are essential for the continued operation of the business, provide drinking and other water used for the dwelling on the Site and for irrigation and day-to-day maintenance of the farm on the Site. The Applicant's poor financial position outlined above at [59] was also relied on.

[61]

Consideration

I have dealt in the development appeals with all of the construction issues in relation to the 2003 consent relied on by the Council and stated at pars 1-3 in the SOFAC ([217] above). The legal effect of the 2003 consent is generally as identified in the particulars in pars 1-3 in the SOFAC. I stated at [166] above that according to the Applicant in the development appeals, bore 1 was the bore approved in 2003. I resolved above at [164] that the annual limit on water extraction is 5 ML/yr. Up to 12 truck trips per day as presently authorised under the amended 2003 consent amounts to 64 days per year being permissible. These findings mean the current level of use of the water bottling facility on the Site to extract up to 28.5 ML/yr is unlawful.
Paragraph 1 of the SOFAC concerns the use of bores and tanks. Only one bore identified as bore 1 in Ex K is permitted to be used under the 2003 consent as I identified at [166] above. I do not understand it was disputed that the five blue tanks with total capacity of 110,000 litres located to the south-west of the dwelling on the land for the purpose of storing groundwater lack planning approval. One tank with a capacity of 30,000 litres in a different specified location was approved under the 2003 consent. Paragraph 2 of the SOFAC concerns failure to comply with delivery times, the use of trucks greater than six metres in length and the failure to limit daily truck trips to 12. Paragraph 3 of the SOFAC concerns the failure to comply with the extraction rate of 5 ML/yr.
Eniflat submitted that if no development consent was granted for DA 1 or DA 2 the Order should be revoked or its operation suspended for an extended period of at least two years because: 1. the Council conveyed to Eniflat that it was able to carry out its current water extraction rate under DA 03/0445 (see Mr Larry Karlos' oral evidence at [69] and [71] above and Mr Matthew Karlos' affidavit at [74]-[75] above) (I accept that submission); 2. the continuation of the present level of water extraction is consistent with a water access licence issued by the NSW government (I accept that it is); 3. DA 03/0445 contemplates the construction of new bores. The Court cannot be satisfied that the bores that are in use are not bores contemplated under the development consent (I have found to the contrary at [166] above); 4. DA 03/0445 allows the extraction of up to 5 ML/yr of water with the potential for up to 10 ML/yr in the future (if there is a change in landowner) (I accept this submission); 5. Eniflat and future landowners should not be denied the benefit of DA 03/0445 (per Sch 5 cl 26 of the EPA Act) (I agree); 6. to the extent that there is a breach, the breach is purely technical which was unnoticeable other than to a person well-versed in the relevant law and the environmental impacts of the breach are acceptable (I do not agree the breach of the 2003 consent is technical); 7. the existing structures are static and long-standing. They cause no harm in themselves and the use of some of them are necessary to support farm activity on the Site (I accept that submission); and 8. the personal implications for the Karlos family of making the Order will be severe in light of the severity of the Karlos family's financial situation (see Mr Larry Karlos' affidavit dated 23 March 2019 at [59] above).
Eniflat referred to Van Haasteren v South Sydney Council (2000) 109 LGERA 252; [2000] NSWLEC 168 at [33] and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Kirby P) at 339 as relevant authorities in relation to the exercise of discretion.
As confirmed by those authorities, I have wide discretion under s 8.18(4) of the EPA Act when determining an appeal against an order to cease use and demolish structures, to revoke, modify and substitute another order inter alia. It is relevant to consider the lengthy history of the use of the Site for a water bottling facility and its regulation by the Council. Mr Larry Karlos did not develop the business from early on in conformity with the 2003 consent, building a number of additional tanks, pipes and installing several bores not the subject of DA approval and extracting more than 5 ML/yr from an unspecified point in time. Mr Karlos gave oral evidence that he used milk tankers some 16 metres in length for 10 years (see above at [69]), in clear breach of the conditions of consent which limited truck length to six metres. His oral evidence is that he believed he had permission to do so after a conversation with a council employee at an unspecified time.
The regulation of the traffic impacts resulting from the activities on the Site by the Council since granting development consent in 2003 has been largely absent or, in more recent times, highly inconsistent. No information about any regulatory action by the Council before 2014 is before me. Two PINs were issued to Mr Larry Karlos in 2014 by the Council which concerned the number and size of trucks. The Council has indeed reversed its earlier approach to the water bottling facility in these proceedings. The Council gave consent to the amendment of the 2003 consent in 2016 to allow an increase in trips from the then permitted two round-trips to six round-trips, meaning 12 trips, which is occurring today. No traffic report was required of the Applicant, as identified in the Council's report dated 2 June 2016 above at [54] on the basis that there would be a minor increase in traffic. Operations were permitted seven days a week, having not previously been specified. In these proceedings the Council argued that because of the state of Urliup Road and traffic safety issues both DAs should be refused, including DA 1 which seeks to extend the number of days of 12 trips from 64 to 303 days. While I have accepted that contention from the Council in the related appeal proceedings, the impact for the Karlos family is significant.
Another area of inconsistency on the Council's part which is highly likely to have contributed to the current unlawful level of water extraction in terms of the EPA Act (as opposed to the Water Management Act) is the Council's view as to the volume of water permitted to be extracted under DA 03/0445, as Eniflat submitted. The uncontested affidavit evidence of Mr Matthew Karlos above at [74]-[75] is that in two conversations in 2016 Ms Galle council town planner confirmed that the maximum amount able to be extracted from the several bores on the Site was as licenced by the NSW Office of Water namely up to 60 ML/yr. The 5 ML/yr limit in DA 03/0445 was redundant. As already identified at [28] above, that the limit under DA 03/0445 was in fact 5 ML/yr, arose only in the course of the modification appeal Karlos v Tweed Shire Council determined in October 2018. The Council's submission in these proceedings that the Karlos family could have sought legal advice in order to better understand DA 03/0445 is disingenuous given the expressed view of a senior council officer to Mr Matthew Karlos. It is understandable that this would be relied on by the Karlos family.
The affidavit and oral evidence from the Karlos family (see above at [60], [63], [64] and [77]) is that the tanks, bores and pipes and loading area with cover are also used for household consumption and in the primary production activity taking place at the Site. I also accept their evidence concerning the dire financial impact on them if DA 1 or DA 2 is not approved. According to Mr Larry Karlos' affidavit evidence above at [59] he will have to sell the property if the current unlawful level of extraction cannot be maintained.

[62]

Exercise of discretion to make orders

I do not exercise my discretion under s 8.18 of the EPA Act to make the Demolish Works Order as the terms of the Order are not justified in these unusual circumstances. Importantly the infrastructure the subject of the orders is also used for domestic and primary production purposes and these uses should be allowed to continue.
The Stop Use Order requires that three specified bores are not to be used for commercial water extraction, that no commercial storage is to occur in the five blue tanks located on the Site, limits hours of truck movements, limits trucks to six metres in length, limits water extraction to 5ML/yr and truck movements to no more than 12 per day. Given the unsafe traffic conditions and other amenity impacts in the local area I have found above in the DA appeals, orders to stop the unlawful use are necessary. In other words I do not consider it is appropriate to revoke the Stop Use Order and allow the unlawful use to continue indefinitely.
At issue therefore is how long the current unlawful level of water extraction and hence unlawful level of truck traffic beyond 64 days per year (assuming 12 trips per day) should be allowed to continue by postponing the Stop Use Order taking effect. This level of extraction has been taking place for several years, since at least 2016 and possibly earlier. As I have found there are ongoing traffic safety and amenity impacts on users of Urliup Road and nearby residents, it is necessary to balance conflicting considerations in this regard. I consider a further two and a half years of operation at the current level is reasonable in all the circumstances.
I do not intend to make all the orders in the Stop Use Order and I am likely to amend others. Final orders will not be made until the terms have been discussed with the parties. Orders 1 and 6 are related in that Order 1 seeks to restrain the use of three specified bores for commercial purposes and Order 6 seeks to limit the rate of water extraction to 5 ML/yr. In relation to Order 1 Eniflat submitted that: 1. Order 1 (to cease using certain bores for extraction and storage or for commercial purposes inter alia) should be revoked for the following reasons: 1. the bore identified as 30WA308262 (bore 4) is not used in connection with the water extraction business and is used for domestic and household use (Mr Larry Karlos' affidavit and oral evidence at [62]-[63] above) (I accept this evidence); 2. there is no evidence that bore 30BL185414 (now referred to as 30BL207402, monitoring bore) has not been constructed under the terms of the existing development consent (see [156] above) (I accept this evidence); 3. in any event bore 30BL207402 is only used as a monitoring bore (Mr Larry Karlos' affidavit dated 9 April 2019 above at [62]) (I accept this evidence); 4. there is no evidence that bore 30BL183219 (bore 2 in Ex K) has not been constructed under the terms of the existing development consent (see [156] above) (I did not accept the Applicant's submission about new bores being permitted under the 2003 consent); 5. if bores have been constructed under the terms of the existing development then their use is authorised by that consent (I have found to the contrary); 6. the bore identified as 30BL183219 is presently used for commercial water extraction and preventing its use would have adverse consequences for the viability of the existing business (Mr Matthew Karlos' affidavit at [225] above) (I accept this evidence); and 7. that bore is also used to supply water for domestic and agricultural purposes (Mr Larry Karlos' affidavit and oral evidence at [62] and [64] above) (I accept this evidence).
Order 6 prevents the extraction of groundwater from the land in excess of the 5ML/yr entitlement. Eniflat submitted Order 6 should be revoked for the following reasons: 1. the Order would be binding on future landowners as well as the current landowner (under cl 26 of Sch 5 of the EPA Act a development control order given to a person binds any person who is a subsequent owner as if the order had been given to that person - and under s 9.37(1) of the EPA Act a person to whom a development control order is taken to have been given must comply with the terms of the order); 2. the Order would deny a future owner who has the benefit of the existing development consent the opportunity to seek a review to increase the extraction limit to 10 ML/yr (under the provisions of the 2003 consent outlined in [142] above); and 3. as a matter of discretion, the Court should (in Eniflat's submission) allow the existing use to continue indefinitely or for an extended period, and this requires extraction of up to 28.5 ML/yr).
Only one of the three bores (bore 2) specified in Order 1 is used for commercial purposes according to Eniflat. Order 1 arguably lacks utility even if amended to refer to the bores presently being used for commercial extraction (bores 2 and 5 according to Mr Larry Karlos' evidence at [63] and [64] above) if Order 6 is made. I have accepted the Karlos' evidence concerning the use of various bores for commercial and other purposes. I do not intend to make Order 1.
Order 6 should be made in some form. Order 6 may need to be amended to ensure the potential is preserved for 10 ML/yr extraction under the 2003 consent if a new owner takes over or a new development consent is granted.
Given that water for household and primary production purposes is stored in the five blue tanks I will not make Order 2.
Order 3 seeks to enforce the conditions of consent as amended in 2016 when hours of operation were introduced. Eniflat submitted that no credible evidence had been adduced by the Council to justify the making of an order that does no more than state the existing conditions of consent which Eniflat is bound by in any event. While the photographic evidence summarised above at [220]-[222] is not able to be tested in that it is not attached to any affidavit attesting to provenance, there is no evidence before me of any other businesses operating in this manner in this vicinity suggesting it is highly likely the trucks depicted are travelling to the Site. I do not consider the photographs which include time and date stamps should be overlooked. I infer that trucks are arriving far too early at the Site on at least some days given that collection is not to occur before 7:00 am Monday to Friday and not before 8:00 am on Saturday. This condition imposed by the Council in 2016 effectively allows trucks to be on Urliup Road earlier than 7:00 am at, for example, 6:45 am out of Bilambil in order to arrive at the Site at 7:00 am. The photographs show trucks travelling on Urliup Road much earlier than is necessary for a 7:00 am start at the Site. An order confirming the hours of operation of the business on the Site is warranted.
Order 4 requires that trucks be limited to six metres in length. Eniflat submitted that as a matter of discretion the Court should allow the existing use to continue indefinitely or for an extended period which allows the use of trucks up to 7.3 metres in length as the evidence confirms is presently in use. Given that trucks of substantially more than 7.3 metres in length have been used in the past in connection with this business an order limiting truck length to 7.3 metres should be considered, noting that is a breach of the condition of the 2003 consent. The suitability of such an order will be discussed with the parties.
Order 5 limits daily trips to 12 as already provided in condition 4B of the amended 2003 consent. I agree with Eniflat that no basis for making Order 5 has been established by the Council's material as it cannot be tested. Before finalising the orders I will provide an opportunity for the parties to comment on draft orders to ensure they are workable and appropriate. A timetable for doing so will be discussed with the parties.