GHD Pty Ltd v Palerang Council

[12]

8 The objectives for Zone No 2(v) are: (a ) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community, (b) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land, (c) to control village development so as to achieve the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets. 9 The objectives for Zone No 1(a) are: (a) to protect the agricultural potential of rural land and to prevent the fragmentation of viable rural holdings, (b) to prevent premature and sporadic subdivisions and to ensure consolidation of urban areas, thus enhancing the prospect of the economic provision of public services, (c) to prevent the subdivision of land on the fringe of urban areas into small allotments that may prejudice the proper layout of future urban areas, (d) to ensure that development occurs only on land which is suitable for, and economically capable of, the proposed development and so as not to create conflicting uses, (e) to allow the use of land within the zone for agricultural purposes and for a range of other appropriate purposes, while minimising conflict between them, (f) to restrict the establishment of inappropriate traffic-generating uses along arterial and main road frontages, (g) to ensure sound management of land which has an extractive or mining industry potential and to ensure that development does not adversely affect the potential of any existing or future extractive industry, (h) to permit the development of industries that are appropriately located in the rural environment, (i) to ensure that any effect development will have on threatened plant and animal species or regionally significant grassland and grassy woodland communities is taken into account. 10 Clause 3 provides aims and objectives for LEP 2002 and states: ( 1) The aim of this plan is to introduce planning controls that will encourage ecologically sustainable development, being development which satisfies the principles of ecological (environmental, economic and social) sustainability set out in Schedule 1, taking into account the ACT and Sub region Planning Strategy September 1998 and Murrumbidgee Catchment Management Plan copies of which are available from the office of the Council . (2) The objectives of this plan are as follows: (a) for rural land: (i) to ensure that rural land is developed in accordance with the principles of ecologically sustainable development, and (ii) to encourage the management, development and conservation of productive agricultural and horticultural land, and (iii) to encourage the proper management and development of natural resources, and (iv) to encourage the siting and management of development to avoid, as far as practicable, conflict between adjoining and nearby land uses, both within and between zones and with regard to likely future land uses, and (v) to protect and conserve places of natural, historic and cultural significance, and (vi) to enable provision of essential roads, transport and utilities infrastructure, (b) for urban land: (i) to ensure that urban land is developed in accordance with the principles of ecologically sustainable development, and (ii) to encourage commercial, retail and professional services in established urban locations, and (iii) to provide flexibility in residential living styles and increased urban amenity for residents, and (iv) to protect and conserve places for natural, historic and cultural significance, and (v) to protect and enhance the social welfare of residents, and (vi) to enable provision of essential roads, transport and utilities infrastructure. 11 The principles of ecological sustainability as referred to in cl 3 are set out in Schedule 1 to LEP 2002. These are: Principles of ecological sustainability The following are principles of ecological sustainability:

[13]

1 The precautionary principle Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and ( b) an assessment of the risk-weighted consequences of various options. The principle requires decision-making to give the environment the benefit of the doubt. 2 Intergenerational equity The present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations (that is, a partnership among all of the generations which may use or expect to benefit from the nation's resources). 3 Conservation of biological diversity and ecological integrity Conservation of biological diversity and ecological integrity should be a fundamental consideration. 4 Improved valuation, pricing and incentive mechanisms Environmental factors should be included in the valuation of assets and services in accordance with the following principles: (a) the polluter pays principle (that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement), and (b) the users of goods and services should pay prices based on the full cycle costs of providing the goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes, and (c) environmental goals having been established should be pursued in the most cost effective way by establishing incentive structures, including market mechanisms which enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems. 12 The principles are stated in terms similar to the definition of "ecologically sustainable development" (ESD) in s 6 of the Protection of the Environment Administration Act 1991, which is incorporated into the EPA Act by s 4 of that Act.

[20]

28 The other contentions identified by the council relate to: 1. the proposed development underestimates the impact on flooding brought about by the placement of fill within the floodplain and the resultant impact on flood dynamics, 2. the proposed development has not satisfactorily demonstrated that it can be undertaken consistent with the principles of ESD, 3. the proposed development does not adequately address the riparian, geomorphological and hydrological issues of Turallo Creek, including the risk of channel avulsion, 4. the proposed development does not properly address the issue of stormwater disposal, including the use of a steep sided open channel drain, 5. the proposed development does not sufficiently address noise issues, 6. the proposed development does not adequately address the need for flood mitigation works resulting from the proposed development, near the corner of Mecca Lane and Turallo Terrace. 29 Contention 1 relating to the impact on flooding brought about by the placement of fill within the floodplain and the resultant impact on flood dynamics was further considered by Dr Perrens, Mr Thomas and Dr Joliffe at the hearing and there was general agreement that the proposed development would not unacceptably impact on flood storage and flood velocities when compared to pre development levels. Any remaining concerns could be addressed by conditions. Is it the proposed development consistent with the relevant objectives of LEP 2002 and zone objectives? 30 Clause 16(1) of LEP 2002 imposes a barrier to the granting of consent, in that the consent authority must be satisfied that the carrying out of the development is consistent with the relevant objectives of LEP 2002 and Zone No 2(v) and Zone No 1(a). A finding of inconsistency with any relevant objective must result in the development application being refused and the appeal dismissed. The Court has generally adopted "consistent with" as meaning not antipathetic, nor incompatible or inconsistent with (see Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190) although the ordinary and natural meaning has also been used by the Court (see Dem Gillespies v Warringah Council [2002] NSWLEC 224).

[31]

43 In response to Mr Smith's concerns on Principles 2 and 3 of the NSW State Rivers and Estuaries Policy, Mr Lampert states that in relation to Principle 2, grazing will be completely removed from the riparian zone and as a result the land will be managed through a combination of private ownership and local government management processes with an opportunity for participation by local community groups. In relation to Principle 3, Mr Lampert identifies the major degrading processes as grazing and the disruption to water flows caused by existing road and rail bridges adjacent to the site. With the approval, grazing activities will be removed and while it is impossible to remove the upstream and downstream bridges, the land will be reshaped and rehabilitated to minimise the impact of these bridges. These impacts include the concentration of water into narrow gullies with the resultant increased flow velocities. The wetlands will be created adjacent to the watercourse, which will fan out floodwater activity and reduce the flow velocity so that natural processes can be reintroduced into the locality. Findings 44 A comprehensive analysis of the application of ESD principles is found in the judgment of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10, at paras [107]-[124]. In subsequent decisions, in particular Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, Preston CJ has elaborated on the particular principles of ESD. The two principles relevant in this matter are the principles identified as (1) and (3) in Schedule 1 to the LEP 2002, namely the precautionary principle, and conservation of biological diversity and ecological integrity. Ecological Integrity 45 In considering the term "ecological integrity", Preston CJ in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 states: 60 At a macro level, ecological integrity involves conservation of the ecological processes that keep the planet fit for life. They "shape climate, cleanse air and water, regulate water flow, recycle essential elements, create and recreate soil, and enable ecosystems to renew themselves": IUCN, UNEP, WWF, Caring for the Earth: A Strategy for Sustainable Development , Oxford University Press, 1992 at p. 9. 61 Maintaining ecological integrity involves maintaining ecosystem health. Ecosystems become unhealthy if their community structure (species richness, species composition or food web architecture) or ecosystem functioning (productivity, nutrient dynamics, decomposition) has been fundamentally upset by human pressures: M Begon, C R Townsend and J L Harper, Ecology: From Individuals to Ecosystems, 4th ed, Blackwell Publishing, 2006, p. 645. 62 Maintaining ecological integrity also involves maintaining ecosystem functioning and ecosystem services. Ecosystem functioning is "the sum total of processes such as the cycling of matter, energy, and nutrients operating at the ecosystem level": R A Virginia and D H Wall, " Ecosystem Function, Principles of" in S A Levin (ed), Encyclopaedia of Biodiversity, Academic Press, 2001, Volume 2, p. 345. Ecosystem services are "the wide array of conditions and processes through which ecosystems, and their biodiversity, confer benefits on humanity; these include the production of goods, life support functions, life-fulfilling conditions, and preservation of options": G Daily and S Dasgupta, "Ecosystem Services, Concept of", in S A Levin (ed), Encyclopaedia of Biodiversity, Academic Press, 2001, Volume 2, p. 353.

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55 Preston CJ in Telstra (at [149]) explains how the two threshold requirements work together: 149 If there is no, or not considerable, scientific uncertainty (the second condition precedent is not satisfied), but there is a threat of serious or irreversible environmental damage (the first condition precedent is satisfied), the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats: A Deville and R Harding, Applying the Precautionary Principle, Federation Press, 1997 at p. 31 and 34; J Cameron, "The precautionary principle: Core meaning, constitutional framework and procedures for implementation" in R Harding and E Fisher (eds), Perspectives on the Precautionary Principle, Federation Press, 1999, p. 29 at p. 37; and N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, 2005 at pp. 74-75 and 158. 56 We accept the evidence of Mr Smith that one way to reduce the risk of avulsion and/or capture is to have a buffer between the creek and the wetlands and that the distance proposed in this instance is insufficient to provide an adequate buffer. The consequence is that we are satisfied that the threat of serious environmental damage could be regarded as relatively certain, and that preventative measures are needed to control or minimise this. In this instance we are satisfied that in the absence of the buffer of 40m suggested as a minimum by Mr Smith, there are deficiencies in the design of the proposed wetlands and proposed preventative measures in assessing the potential impact on Turallo Creek.

[47]

68 In general terms, we accept that the diversion of existing flow is necessary given the changed circumstances brought about by the urban development of a largely rural site and the need to formalise flows that currently occur largely because of the natural features of the site. Based on our site view, the existing uncontrolled stormwater flows occur over relatively flat depressions in the land rather than defined drainage channels. We do not however accept that the proposed drainage swale along Turrallo Terrace is an appropriate response given the steep batters, the proposed access arrangements for existing dwellings in Turrallo Terrace, the long-term maintenance problems identified by Mr Rogers and the inconsistent form of the swale when compared to other open drainage swales in Bungendore. Noise 69 Noise, particularly during the construction phase, was a matter raised by a number of residents on-site. In accepting that noise is a potential problem, we are satisfied that noise associated with the construction phase could be appropriately dealt with through the imposition of conditions requiring a Construction Management Plan. This plan would identify the appropriate noise goals, the activities to be undertaken, the plant required to undertake those activities and timing of the works. Flood free access 70 Dr Perrens, Dr Joliffe and Mr Thomas addressed the question of flood free access for the proposed lots. The concern relates to a low point at the Modbury Street intersection with proposed Road 1. Dr Perrens states that there should be a road evacuation route that array its continuously up from the development to the higher level in Modbury Street. While accepting that this is a desirable principle, Dr Joliffe states that this has been considered in the design however to achieve the evacuation route suggested by Dr Perrens there would be increase of earthworks, construction noise and potential access problems with existing properties in Modbury Street. On balance, Dr Joliffe does not consider this necessary as access is already flood free for the 1 in 100 year flood event. Mr Thomas also agrees that Dr Perren's approach is desirable, however it is more important when some part of the evacuation route is below the 1 in 100 year flood event. This, however is not the case for the proposed subdivision. 71 On balance, we agree with the position adopted by applicant's experts. The planning level is the 1 in 100 year flood event and as flood free access is available in this storm event, we accept that the proposal is acceptable in terms of flood free access. Orders 72 The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application DEV.2007.0360 for the extraction of material and the filling of land to create a 40 lot residential subdivision at Turallo Terrace, between Duralla Street and Mecca Lane, Bungendore is refused. 3. The exhibits are returned.

GHD Pty Ltd v Palerang Council - [2009] NSWLEC 1342 - NSWLEC 2009 case summary — Zoe

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Judgment (50 paragraphs)

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Cases Cited (5)

Cited By (1)