Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council

The unauthorised works issue

1. Goldcoral proposes to remove nearly all of the roads and stormwater and sewage infrastructure constructed by the previous land owners purportedly in accordance with the previous development consents. Goldcoral proposes to construct new roads and new stormwater and sewage infrastructure on the land. Only two of the previous infrastructure works on the land will remain. The first is the stretch of internal road bisecting the two areas of littoral rainforest on the land. Some works are proposed to be carried out on this small stretch of road, but these have been kept to a minimum to avoid harming the rainforest on either side of the road. The retention of this existing internal road and carrying out of works on the road have not been opposed by the Council on ecology grounds - it is clearly the most ecologically sensitive approach.
2. The second work that will remain is an unformed drainage channel constructed by the previous land owners running inside the north-eastern edge of the northern area of littoral rainforest. This was referred to as the western drainage line. After the previous land owners abandoned the previous subdivision, native vegetation (largely Acacias) has regrown in and beside the drainage channel. Goldcoral proposes to enhance the revegetation of the area in and around the drainage channel to provide a vegetated buffer between the residential subdivision to the north and the littoral rainforest. The parties' ecologists agreed that the drainage channel should be retained within the littoral rainforest buffer and revegetated: Revised Terrestrial Ecology, Aquatic Ecology and Arboriculture Joint Expert Report (Ecology Joint Expert Report), p 3. Again, the retention and revegetation of this drainage channel is not opposed by the Council on ecology grounds.
3. Goldcoral also seeks to use the existing road, Iron Gates Drive, and the bridge over the creek, which were constructed under the previous development consents. Goldcoral proposes some works to upgrade the road and signage. If necessary, Goldcoral will undertake other works to upgrade the bridge and the sewage and water pipes that run along the road and over the bridge. The Council raised no issue with the works proposed for the road and bridge, subject to there being a structural safety assessment of the bridge, which can be appropriately conditioned in any grant of development consent.
4. Nevertheless, the Council raised a technical legal issue. The Council contended that the internal road and drainage channel constructed by the previous land owners on the land and the public road and infrastructure works on Iron Gates Drive were unlawful. The Council did not seek to prove the unlawfulness of these works on this appeal, but was content to rely on the previous litigation for that purpose. If those works were unlawful, the Council contended that Goldcoral should gain no advantage from those unlawful works. The Council relied on what I said in Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207 at [128] (Ralph Lauren), citing what King CJ said in Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 at 324; 49 LGERA 17 at 20 that: "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." The Council submitted that to the extent that Goldcoral seeks to leave and use the internal road and drainage channel on the land and the road, bridge and infrastructure on Iron Gates Drive, it is seeking to gain an advantage from these unlawful works. That should not be permitted.
5. The Council's argument is misguided. There is no legal principle that development consent cannot be sought to carry out development to erect a building (which includes a structure) or to carry out works that would amend a building or works that are unlawful, and then to use in the future the new or amended building or works. That was recognised in Ralph Lauren at [128]. Contrary to the Council's contention, development consent can be granted to the development proposed by Goldcoral to carry out works to upgrade the stretch of internal road through the littoral rainforest, to revegetate and use for conservation purposes the existing drainage channel in the littoral rainforest and to upgrade and use the road, bridge and infrastructure on Iron Gates Drive.
6. The granting of development consent for these works and uses does not allow Goldcoral to gain advantage "from having established an unlawful use". As a matter of fact, Goldcoral did not establish the unlawful use either on the land or on the now dedicated public road, Iron Gates Drive. The works on the land were carried out by the previous owners of the land. Goldcoral purchased the land with those works already constructed. The previous land owners constructed Iron Gates Drive and the Council erected the bridge over the creek, and the road and bridge were dedicated as a public road. Moreover, Goldcoral is not making any argument based either directly or indirectly upon the unlawful use of the works on the land or Iron Gates Drive. The argument that consent be granted for Goldcoral's proposed development is not dependent for its success on the unlawfulness of the works on the land or Iron Gates Drive.
7. The Council's counterfactual argument does not assist. The Council submitted that had the previous land owners complied with this Court's orders made in Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89 on 4 July 1997 to remediate the drainage channel, the drainage channel would no longer exist so as to provide the basis for the proposed development. Maybe, maybe not. But it does not matter. Goldcoral is not seeking to take advantage of the drainage channel as a drainage channel, but rather as a revegetated area that can serve as a buffer to protect the littoral rainforest. This is the same purpose that would have been served if the drainage channel had been removed and revegetated in accordance with the Court's orders.

The designated development issue

1. The Council noted that "designated development" for the purposes of the EPA Act includes development that is declared to be designated development by an environmental planning instrument: s 4.10(1) of the EPA Act. The RAH SEPP is an environmental planning instrument that declares specified development to be designated development: cl 2.7(2).
2. The Council's contention that the proposed development is designated development depends on the RAH SEPP applying to the development. The RAH SEPP is in force, having commenced on 1 March 2022. On the Coastal Wetlands and Littoral Rainforests Area Map under the RAH SEPP, part of the land (within Lot 277) is identified as "coastal wetlands". This area of coastal wetlands is within the area of the land zoned C2 Environmental Conservation under RVLEP. The land proposed for the residential subdivision is wholly within the R1 General Residential zone, which is to the south and east of the land zoned C2 Environmental Conservation and the area identified as coastal wetlands under the RAH SEPP.
3. Nevertheless, the Council contended that development will still be carried out on land identified as coastal wetlands because one of the lots of the land, Lot 277, will be subdivided under the community title subdivision to create residential lots to the south of the area identified as coastal wetlands. The Council contended that the subdivision of the land is "development" as defined in s 1.5(1)(b) of the EPA Act. Subdivision is defined in s 6.2(1) of the EPA Act to mean "the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition", and by s 6.2(2) of the EPA Act, subdivision of land includes the "procuring of the registration in the Office of the Registrar-General of…a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919" (NSW). The Council noted that these definitions make clear that subdivision of land does not require the carrying out of works on land; merely dividing land by drawing of lines on a plan of subdivision that is registered can suffice. On this basis, by subdividing Lot 277, Goldcoral is carrying out development for the purposes of the EPA Act.
4. The Council submitted that cl 2.7(2) of the RAH SEPP declares that development to be designated development. Clause 2.7(2) provides that development for which consent is required by cl 2.7(1), other than development for the purpose of environmental protection works, is declared to be designated development. Subsection (1) provides that the development specified in the subsection may be carried out on land identified as "coastal wetlands" only with development consent. One of the developments specified in (d) is "any other development". The Council submitted that subdivision falls within this category of any other development. Therefore, the subdivision of land identified as coastal wetlands is designated development.
5. The Council submitted that the consequence is that development consent cannot be granted to the subdivision as the development application was not accompanied by an environmental impact statement and the statutory procedures for public notice and consultation for designated development have not been complied with.
6. Goldcoral contested the Council's argument that the development is designated development for three reasons. First, Goldcoral's development application is to be assessed under SEPP 14 and SEPP 71, which do not declare the proposed development to be designated development, rather than RAH SEPP. Second, even if RAH SEPP does apply to Goldcoral's development application, no part of the land identified as "coastal wetlands" under RAH SEPP will be subdivided - the boundaries of the lots shown on the plan of subdivision are outside of the area identified as "coastal wetlands." The boundary between the residential allotments and the area mapped as coastal wetlands follows the splay at the interface of the R1 General Residential zone and the C2 Environmental Conservation zone, which coincides with the boundary of the area identified as coastal wetlands. Third, the subdivision of the land without carrying out any works on the land does not involve the carrying out development "on land" within the area mapped as coastal wetlands.
7. I find that Goldcoral's proposed development is not designated development, for the three reasons advanced by Goldcoral.
8. First, Goldcoral, as the applicant who made the development application at a time when the former environmental planning instruments of SEPP 14 and SEPP 71 were in force, has a right to have its development application determined under those instruments. That right is founded on s 5(6) and s 30(2)(b) and (d) of the Interpretation Act 1987 (NSW).
9. Goldcoral lodged the development application on 27 October 2014. At that time, SEPP 14 was in force. Clause 7(1) of SEPP 14 restricted a person carrying out specified development on land to which SEPP 14 applied without development consent. The land to which the policy applied was land "outlined by the outer edge of the heavy black line on the map": cl 4(1) of SEPP 14. The map outlined as coastal wetlands a slither in the north-eastern part of the land within Lot 277. The adjoining land to the east was largely mapped as coastal wetlands under SEPP 44, with only a narrow strip of coastal wetlands encroaching across the common boundary with the land. The southernmost encroachment into the land of the mapped coastal wetlands formed the splay that later became the interface between the R1 General Residential zone and the C2 Environmental Conservation zone under RVLEP.
10. The development specified in cl 7(1) of SEPP 14 as requiring consent was to clear land to which the policy applied, construct a levee on that land, drain that land or fill that land. Clause 7(3) of SEPP 14 declared development for which consent is required by cl 7(1) to be designated development for the purposes of the EPA Act. The development proposed by Goldcoral does not involve carrying out on the land outlined as coastal wetlands on the SEPP 14 map any of the developments specified in cl 7(1) as requiring consent. Hence, Goldcoral's proposed development was not declared by SEPP 14 to be designated development.
11. SEPP 71 also applied to the land at the time Goldcoral lodged its development application in 2014. The land proposed to be developed is in the "coastal zone" as defined in s 3(1) of SEPP 71. As the land is located within 100m of the mean high water mark and is within 100m of coastal wetlands identified under SEPP 14, the land is also located within a "sensitive coastal location" as defined in s 3(1) of SEPP 71. SEPP 71 did not contain provisions prescribing any development in the coastal zone or a sensitive coastal location as designated development.
12. On 3 April 2018, the Coastal SEPP repealed and replaced SEPP 14 and SEPP 71. The Coastal SEPP had a savings provision, cl 21(1), which provided: "The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies."
13. The term "former planning provisions" was defined in cl 21(4) to include SEPP 14 and SEPP 71. The phrase "finally determined" refers to a development application finally determined by any court on appeal, including this Court: CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97 at [42], [43], [50], [51].
14. As a consequence of this saving clause, SEPP 14 and SEPP 71 continued to apply, and the Coastal SEPP did not apply, to Goldcoral's development application.
15. On 1 March 2022, RAH SEPP repealed and replaced the Coastal SEPP. Clause 2.7 of the RAH SEPP regulated the carrying out of development on land identified as "coastal wetlands" on the Coastal Wetlands and Littoral Rainforests Area Map. Development specified in cl 2.7(1) can only be carried out on that land with development consent. Clause 2.7(2) declares development for which consent is required by cl 2.7(1) to be designated development for the purposes of the EPA Act.
16. The RAH SEPP did not save all of the provisions of the Coastal SEPP. The provisions of the Coastal SEPP were generally transferred into Chapter 2 of the RAH SEPP, but the savings provision in cl 21(1) of the Coastal SEPP was not transferred: Schedule 3, cl 1(1) of the RAH SEPP. This lack of transfer of cl 21(1) of the Coastal SEPP to Chapter 2 of the RAH SEPP is the basis for the Council's argument that the provisions of RAH SEPP, and not the former planning provisions of SEPP 14 and SEPP 71, apply to Goldcoral's development application.
17. Goldcoral, however, relies on the provisions of the Interpretation Act, s 5(6) and s 30(2)(b) and (d), as continuing to apply the former planning provisions of SEPP 14 and SEPP 71 to Goldcoral's development application. Section 5(6) of the Interpretation Act provides that "the provisions of sections…30… that apply to a statutory rule also apply to an environmental planning instrument." SEPP 14 and SEPP 71 are both environmental planning instruments. Section 30(2) of the Interpretation Act provides: "(2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect - (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule."
18. Goldcoral submitted that the effect of s 30(2)(b) and (d) is that the repeal of the Coastal SEPP by the RAH SEPP did not affect, first, the operation of the savings provision in cl 21(1) of the Coastal SEPP and, second, the accrued right under cl 21(1) of the Coastal SEPP that the former planning provisions of SEPP 14 and SEPP 71 continue to apply to Goldcoral's development application. That an applicant for development consent can have such an accrued right was established by the Court of Appeal's unanimous decision in The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178; [2004] NSWCA 424 (Dubler).
19. I agree with Goldcoral that s 30(2)(b) and (d) of the Interpretation Act operate to save Goldcoral's accrued right under cl 21(1) of the Coastal SEPP to have its development application determined under the former planning provisions of SEPP 14 and SEPP 71, and not the provisions of RAH SEPP. Although the Council sought to distinguish the decision in Dubler on the basis that the accrued right in that case was under the former s 34(4)(b) of the EPA Act, I find the reasoning of the Court to be equally applicable to the equivalent provision in s 30(2) of the Interpretation Act.
20. The "right" saved by cl 30(2)(b) of the Interpretation Act was not a right that arose from Goldcoral making the development application. A development application is to be determined by a consent authority, and a court on appeal, on the basis of the law that is applicable at the time of determination of the development application: Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614 at 622 and Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630 at 634-635. Rather, the right saved by s 30(2)(b) of the Interpretation Act was the right that accrued by the operation of the savings provision of cl 21(1) of the Coastal SEPP. That savings provision created the right of Goldcoral, as the applicant for development consent, to have the development application determined under the former planning provisions of SEPP 14 and SEPP 71. This is the right "saved by the operation of" cl 21(1) of the Coastal SEPP. Once that right accrued, the operation and effect of s 30(2)(b) and (d) of the Interpretation Act was that the repeal of the Coastal SEPP by the RAH SEPP did not affect the right saved by, and the operation of, cl 21(1) of the Coastal SEPP to have the development application determined under the former planning provisions of SEPP 14 and SEPP 71, and not the current provisions of the RAH SEPP: see Dubler at [26], [30], [36], [38].
21. The consequence is that the development proposed by Goldcoral is not designated development for the purposes of the EPA Act. The provisions of the RAH SEPP that do declare specified development to be designated development do not apply to Goldcoral's development application. The provisions of SEPP 14 and SEPP 71, which do apply to Goldcoral's development application, do not declare the development proposed by Goldcoral to be designated development.
22. If contrary to the first reason the provisions of the RAH SEPP, and not the former planning provisions of SEPP 14 and SEPP 71, apply to Goldcoral's development application, cl 2.7 of the RAH SEPP nevertheless does not operate to declare the development proposed by Goldcoral to be designated development. Goldcoral does not propose to carry out on the land any of the developments specified in cl 2.7(1)(a), (b) or (c) of the RAH SEPP. The Council did not contend to the contrary. Rather, the Council contended that Goldcoral is proposing to carry out "any other development", the phrase in cl 2.7(1)(d) of the RAH SEPP, and the proposed subdivision is any other development. The proposed development is, the Council's argument runs, therefore development for which consent is required by cl 2.7(1) and hence declared to be designated development by cl 2.7(2) of the RAH SEPP.
23. I reject the Council's argument for two reasons. The first is that the proposed subdivision does not involve the division of that part of the land identified as coastal wetlands under the RAH SEPP into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The boundaries of the proposed subdivision run along, but not inside, the outer edge of the line on the Coastal Wetlands and Littoral Rainforest Area Map under the RAH SEPP identifying the coastal wetlands that encroach slightly into the eastern part of the land (Lot 277). Whilst this effects a subdivision of Lot 277, it does not subdivide that part of Lot 277 that is "land identified as 'coastal wetlands'… on the Coastal Wetlands and Littoral Rainforests Area Map." That part of Lot 277 identified as coastal wetlands remains intact, not divided.
24. The second reason for rejecting the Council's argument is that, although subdivision of land is development as defined in s 1.5(1) of the EPA Act, the mere subdivision of land by the procuring of the registration in the Office of the Registrar-General of a plan of subdivision without undertaking any physical work on the land, such as the carrying out of a work, does not involve the carrying out of development "on land." Each of the development for which consent is required by cl 2.7(1) of the RAH SEPP is development that is "carried out on land." The procuring of the registration of a plan of subdivision might involve the subdivision of land, which is development, but that subdivision is not "carried out on land."
25. To carry out development on land involves doing something on the land. That is evident with the development specified in paragraphs (a) to (c) of cl 2.7(1) - they all involve physical work on the land with attendant impacts on the land and its vegetation. The catch-all category of "any other development" in paragraph (d) of cl 2.7(1) is no different. Development other than the developments specified in paragraphs (a) to (c) must also be "carried out on land". The mere procuring of the registration of a plan of subdivision in the Office of the Registrar-General does not involve the carrying out of any development on land.
26. For these two reasons, even if the RAH SEPP were to apply to Goldcoral's development application, cl 2.7 of the RAH SEPP does not declare the development proposed in the development application to be designated development.

Impact on native title rights issue

1. Ms Barker's first contention was that the proposed development would have an unacceptable impact on the traditional owners of Country exercising and enjoying their native title rights on land and waters to the south of the land.
2. Ms Barker is a Bandjalang woman of the Bundjalung nation. The Bandjalang people enjoy the benefit of native title rights and interests in lands and waters near to the land. Those rights and interests were upheld by the Federal Court in Bandjalang People No 1 and No 2 v Attorney General of NSW [2013] FCA 1278 and Bandjalang People No 3 v Attorney General of NSW [2021] FCA 386. The native title rights and interests are held in trust by the Bandjalang Aboriginal Corporation Prescribed Body Corporate. Ms Barker is a listed member of that corporation.
3. The native title rights and interests recognised by the Federal Court include the following non-exclusive rights: a. the right to hunt, fish and gather the traditional natural resources of the Consent Determination Area for non-commercial personal, domestic and communal use; b. the right to take and use waters on or in the Consent Determination Area; c. the right to access and camp on the Consent Determination Area; d. the right to do the following activities on the land: i. conduct ceremonies; ii. teach the physical, cultural and spiritual attributes of places and areas of importance on or in the land and waters; and iii. to have access to, maintain and protect from physical harm, sites in the Consent Determination Area which are of significance to the Bandjalang People under their traditional laws and customs.
4. The lands on which the Federal Court found these native title rights and interests exist, and which could be potentially affected by the development, are to the south of the land, largely on the southern side of Evans River. The waters on which the Federal Court found these native title rights and interests exist include the Evans River.
5. Ms Barker is concerned that the development of the land may impact the exercise and enjoyment of native title rights and interests, largely by reason of visual impacts and acoustic impacts.
6. Goldcoral has sought to mitigate the visual and acoustic impacts in two ways. First, Goldcoral deleted the proposal for Stage 2 of the residential subdivision in the south-western corner of the land, an area which might be able to be seen and heard from the lands and waters to the south. Second, Goldcoral proposes planting a dense screen of vegetation between the southern area of the residential subdivision and the Crown foreshore reserve. Cross-section C on the concept rehabilitation areas plan shows there will be, at that location, a 40m setback from the Crown foreshore reserve, comprising 17m of retained native vegetation and a 23m buffer zone with dense rainforest plantings. This densely vegetated buffer will supplement the already dense vegetation in the Crown foreshore reserve. The Crown foreshore reserve adjacent to the land varies between 23.25m at its narrowest to 41.79m at its widest, with an average width of 28.3m. The combined width of the densely vegetated buffer screening the development from the lands and waters to the south is therefore around 68m. This exceeds the 50m buffer Ms Barker sought to avoid unacceptable impacts on native title rights and interests.
7. The result will be that the residential subdivision will be visually and acoustically screened from the lands and waters to the south, mitigating unacceptable impacts on the exercise and enjoyment of native title rights and interests in those areas.

Conditions of consent

1. The parties reached substantial agreement on the conditions of consent. The conditions proposed by Ms Barker were agreed to, with minor wording changes, by Goldcoral and the Council and have been included in the conditions of consent. Consequently, Ms Barker took no issue with Goldcoral's proposed conditions.
2. The conditions proposed by Ms Barker and agreed to by Goldcoral and the Council involved: 1. Consultation to identify culturally significant trees on Iron Gates Drive: A condition was proposed to implement Recommendation 5 of Mr Muhlen-Schulte in his Aboriginal Cultural Heritage Assessment Report (ACHAR): "Consultation with any Registered Aboriginal Parties identified in the ACHAR, who wish to participate in the consultation, and any other Bandjalang people who may wish to participate, is required prior to any works commencing on Iron Gates Drive in relation to the identification of culturally significant trees. Should any culturally significant trees be identified they should be inspected by a qualified arborist prior to engineering plans being prepared and a construction certificate being issued for those works in accordance with Recommendation 5 of the ACHAR." 1. Cultural induction and cultural material finds procedure: A condition was proposed to implement Mr Muhler-Schulte's Recommendations 6, 7 and 8: "The Applicant is to develop an Aboriginal Cultural Heritage Management Plan in consultation with any Registered Aboriginal Parties identified in the ACHAR, who wish to participate in the consultation, and any other representative of the Bandjalang people who may wish to participate, that provides for: i. induction for machine operators undertaking initial ground disturbance in Aboriginal cultural heritage, in accordance with Recommendation 6 of the ACHAR; and ii. protocols for unexpected finds of Aboriginal objects and human remains, in accordance with Recommendations 7 and 8 of the ACHAR." 1. Cultural interpretation: A condition was proposed to implement Mr Muhler-Schulte's Recommendation 3. The detailed landscape plans submitted for approval with the subdivision works certificate application are to show: "How they have been developed in consultation with Traditional Owners and have had regard to Aboriginal knowledge, story and history, in accordance with Recommendation 3 of the Aboriginal Cultural Heritage Assessment Report prepared by ALICH Group dated 1 May 2024 (ACHAR)". 1. Prohibition on dogs and cats: A condition was proposed requiring an instrument under s 88B of the Conveyancing Act 1919 (NSW) to include a "prohibition on the keeping of dogs or cats" to protect native fauna in the area.
3. The conditions on which Goldcoral and the Council disagreed fell into eight categories.
4. The first is whether the road reserves containing the internal estate roads and bioretention swales, and the public open space in proposed Lot 147 (the proposed public park) should be dedicated to the Council or retained and managed by the community association. Goldcoral proposes to dedicate those lands to the Council; the Council proposes conditions requiring the concept plan and the plan of community title subdivision to be amended to include proposed Lot 147 and all internal estate roads and bioswales to form part of Lot 1, the community property lot.
5. The Council's opposition to the internal estate roads being dedicated was primarily based on the roads including the bioswales, although it faintly advanced another reason that a community title subdivision is usually responsible for the internal estate roads. This other reason is unpersuasive. The Council was prepared to accept dedication of the internal estate roads when Goldcoral proposed a Torrens title subdivision. The Council's opposition to dedication of the roads opportunistically arose when Goldcoral proposed community title subdivision to address a concern the Council had raised about the inappropriateness of a Torrens title subdivision for the provision and on-going maintenance of the community building and land for conservation purposes. The change in title of the subdivision effected no change in the internal estate roads. If the roads were appropriate to be dedicated under a Torrens title subdivision, they are equally appropriate to be dedicated under a community title subdivision.
6. I return to the Council's primary reason for opposing the dedication of the road reserves, which is that they include the proposed bioswales. The Council submitted that it is ill-equipped to manage the bioswales, for six reasons: 1. Bioswales take up considerably less land than a traditional drainage basin, but require significantly higher maintenance costs. 2. The Council has identified nine gross pollutant traps within the proposed bioswales, which will require regular cleaning, likely quarterly at least. 3. The Council does not currently manage any bioswales. It anticipates a tractor with a long arm will be required to clean the bioswales, but the Council does not presently own this piece of equipment. 4. The ongoing costs associated with cleaning are significant. 5. In other sites in the local government area whether there are gross pollutants traps, but not bioswales, only three gross pollutant traps can be cleaned a day. 6. The waste cleaned from the gross pollutant traps must be disposed of as trade waste, which incurs another cost to the entity responsible for cleaning the bioswales.
7. Goldcoral submitted that councils all around the State accept the dedication and management of public roads and drainage and stormwater facilities. The bioswales - the abbreviation of bioretention swales - may have a different name, but they are not different in function to a stormwater detention basin. They may be linear in shape rather than rectangular but they serve the same function of protecting environmentally sensitive lands and waters. In this case, the bioswales protect the littoral rainforest, Crown foreshore reserve, coastal wetlands and the Evans River. As the Council concerned, it accepts the dedication of and manages stormwater detention basins in the local government area, in whatever design and form are those basins. The proposed bioswales might be different in design and form to the stormwater detention basins the Council has accepted in the past, but as they serve the same function, there is no reason in principle for the Council not to accept them and manage them as it does for all other stormwater detention basins it has accepted.
8. Goldcoral submitted that, in relative terms, the Council has far greater knowledge, experience and equipment to manage the bioswales than the community association will ever have. The proper ongoing management and maintenance of the bioswales is important in the public interest to protect environmentally sensitive lands and waters. The Council is in a far better position to do this than a committee of lay people living in the community of the residential estate.
9. Goldcoral acknowledged that the Council's management and maintenance of the bioswales will involve cost, but so does the management and maintenance of all the stormwater detention basins and other drainage and stormwater infrastructure with respect to which the Council has responsibility. For new infrastructure with a different design, the Council may need to upgrade its equipment and upskill its staff to manage and maintain the new infrastructure. But that is not unexpected or unreasonable.
10. Goldcoral submitted that, pursuant to conditions of consent, the Council will have the opportunity to assess and approve the detailed designs and the operation and maintenance plans for the proposed gross pollutant traps and bioswales, and hence will have control over the design of and be prepared to operate and maintain the bioswales.
11. Likewise, Goldcoral submitted, if waste is encountered in cleaning the bioswales that needs to be disposed of as trade waste, the Council has existing waste facilities that can receive that waste. Again, such waste can be expected to be encountered from time to time in all of the stormwater detention basins and infrastructure that the Council already manages.
12. I agree with Goldcoral, for the reasons it advanced, that the bioswales, whilst different in form, are not different in function to the stormwater detention basins and infrastructure the Council already manages and maintains. The Council is better placed to manage and maintain the bioswales than the community association, thereby better ensuring the protection in the public interest of environmentally sensitive lands and waters. I reject the Council's proposed conditions opposing the dedication of the internal estate roads with the bioswales, and accept Goldcoral's proposed conditions.
13. The Council also opposed the dedication of Lot 147, which is the proposed public park. Its reason was tenuous. The Council said it does not have the financial, human and material resources to manage and maintain the local open space and parks which it currently has, and is considering disposing of existing parks. In these circumstances, the Council submitted it cannot accept and manage an additional local park. I reject this reason.
14. The management of local public parks is a fundamental responsibility of local government. If the Council is not coping with the management of existing public parks, it needs to improve its performance. Discriminating against the residents of one neighbourhood - the residents of the proposed residential estate on the land - by not accepting and managing a local park for those residents is not equitable. Goldcoral will establish all of the facilities in and landscape the park before dedicating it to the Council. The Council only has to maintain the park afterwards.
15. Second, the Council proposed, in Schedule A, a deferred commencement condition requiring a structural safety assessment of the existing bridge on Iron Gates Drive. Goldcoral agreed with the condition requiring the structural safety assessment of the bridge, but submitted the condition should be an operational condition not a deferred commencement condition. Goldcoral included the condition in Schedule B, Part C as a condition (condition 4) that must be complied with prior to subdivision work on the land commencing.
16. I agree with Goldcoral that the condition can be an operational condition that must be complied with prior to subdivision work commencing. The reason the Council gave for imposing the condition, which Goldcoral accepts, is: "To determine the condition, structural and serviceability, of the Iron Gates Drive bridge particularly for the demands imposed on the existing bridge by the significant heavy vehicle truck movements during the importation of the site filling and construction. Should the bridge require a rebuild or upgrade or widening to meet current standard for load limits that involves filling of land and/or vegetation removal that requires an approval under SEPP Resilience and Hazards then this is to be obtained prior to the works commencing, and that any rectification or reconstruction works are identified and completed appropriately."
17. This appropriate purpose and timing of the structural assessment of the bridge can be achieved by requiring compliance before any subdivision work commences on the land; it does not need to be done before the consent operates. The significant heavy vehicle truck movements during the importation of the site filling and construction will only commence once subdivision work commences. Hence, it is sufficient that the condition must be complied with before subdivision work commences.
18. Third, the Council proposed a condition regulating the importation of red fire ants. Goldcoral opposed the condition. I consider the condition is unnecessary. The Council's condition amounted to an instruction to comply with the law, including the Biosecurity (Invasive Ant Carriers) Control Order 2023. All of the requirements of the proposed condition are requirements of that order or the Biosecurity Act 2015 (NSW) under which the order was made. Nothing is to be gained by a condition of consent requiring compliance with existing law.
19. Fourth, the Council proposed that the Bulk Earthworks Plan, which Goldcoral is required to submit to the Council, include "Details demonstrating that no more than 149,217 cubic metres of fill material will be imported to the site." Goldcoral accepted the condition requiring the submission of a Bulk Earthworks Plan, but opposed the plan demonstrating that no more than 149,217 cubic metres of fill material will be imported to the site. I reject the Council's proposed amendment to the condition. Goldcoral will be required by the conditions of consent to carry out the development in accordance with the approved plans, including the Bulk Earthworks Plan. These plans detail the location and the maximum filling level of fill material imported to and placed on the site. These plans fix the amount of fill material that can be imported to the site. It is unnecessary to specify a maximum volume.
20. Fifth, the Council proposed, in two conditions fixing the hours of work, to limit the hours of work on Saturdays to 1pm, while Goldcoral sought 4pm. I accept that site work should be permitted to continue to 4pm on Saturdays. The land is separated from the township of Evans Head and work onsite will not adversely affect the amenity of residents in Evans Head.
21. Sixth, the Council proposed a condition requiring Goldcoral to submit to the Council, prior to the issue of a subdivision works certificate, written confirmation that the Flood Emergency Response Plan was forwarded to the NSW State Emergency Service for review. Goldcoral opposed the addition of the words "for review". The Council agreed to delete those words. With this deletion, the condition was agreed.
22. Seventh, the Council proposed that the s 88B instrument under the Conveyancing Act 1919 (NSW) required to be created include a restriction "prohibiting certain development types including childcare facilities, family day care, tourist or visitor accommodation such as short-term holiday rentals and Air BnBs." Goldcoral opposed that restriction, submitting that a s 88B instrument should not prohibit otherwise permissible land uses. The use of land within the residential estate for any of those land uses will require a development application to be made, which will allow the Council to assess the proposed use on its merits. I agree with Goldcoral that this condition to effect a private zoning by way of a s 88B instrument that limits what the public zoning under RVLEP allows, is inappropriate.
23. Eighth, the Council sought for the Vegetation and Fauna Management Plan to be amended to include certain matters concerning koalas. The Council had originally sought a condition requiring the conservation lands in the community lot (proposed Lot 1) to be managed in accordance with the approved Koala Plan of Management. The reference to the "approved" Koala Plan of Management was included consistent with the Council's argument that development was being proposed on land in a core koala habitat and therefore required an approved Koala Plan of Management. I have earlier rejected this argument: an approved Koala Plan of Management is not required. On this basis, there is no warrant for the Council's proposed condition that the conservation lands in the community property are managed in accordance with an approved Koala Plan of Management.
24. In this circumstance, the Council's alternative argument was that the Vegetation and Fauna Management Plan, which is required by another condition of consent, should be amended to include certain matters that would otherwise have been in the approved Koala Plan of Management. These matters are to require biennial koala activity monitoring and koala activity monitoring after fire. Both measures were recommended in Goldcoral's draft Koala Plan of Management, which was prepared when Stage 2 of the residential subdivision was proposed in the vicinity of a potential koala habitat.
25. Goldcoral submitted that now it has deleted Stage 2 of the residential subdivision in that area, there is no justification for incorporating these previous recommendations in the Vegetation and Fauna Management Plan. Goldcoral submitted these, now unnecessary, requirements have no sufficient nexus with the development proposed, citing Lorenzato v Burwood Council [2017] NSWLEC 1269.
26. I agree with the Council that the Vegetation and Fauna Management Plan should incorporate the requirements previously recommended in Goldcoral's draft Koala Plan of Management to undertake biennial koala monitoring and koala monitoring after fire. It may be accepted that Goldcoral's terrestrial ecology consultant recommended such monitoring when Goldcoral proposed Stage 2 of the residential subdivision in the vicinity of a potential koala habitat, and that Goldcoral has now deleted the proposed Stage 2 in that area. But there still is evidence of koalas using that area. The ecological experts agreed that koalas may range elsewhere on the land, in search of food. Such use of the land now proposed for the residential subdivision may not cause the land to be classified either as a potential koala habitat or a core koala habitat. But such classification is not the only reason to require monitoring of koala activity. The Koala is a vulnerable fauna species that is found on the land and surrounding land and ought to be the subject of monitoring and management under the Vegetation and Fauna Management Plan. In these circumstances, the monitoring requirements have a sufficient nexus to the proposed development.

Bandjalang People No 3 v Attorney General of NSW [2021] FCA 386

Oshlack v Richmond River Shire Council and Iron Gates Development Pty Ltd (1993) 82 LGERA 222; [1993] NSWLEC 3

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178; [2004] NSWCA 424

1. This planning appeal is an illustration of T.S. Eliot's poetic observation in The Hollow Men that "between the idea and the reality... falls the Shadow." The applicant, Goldcoral Pty Ltd (Receiver and Manager Appointed) (Goldcoral) has appealed under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of the Northern Regional Planning Panel, on behalf of the consent authority, Richmond Valley Council (the Council), of a development application that sets out concept proposals and detailed proposals for the first stage of residential subdivision (the development) of land at 240 Iron Gates Drive, Evans Head (the land).
2. The land proposed to be developed for the residential subdivision is legally described as Lots 276 and 277 in DP 755624. To the west of Lots 276 and 277 is Lot 163 in DP 831052. The only development for which consent is now sought on Lot 163 is the demolition of the existing house and other structures on that lot. In between Lot 276 and Lot 163 is a Crown Road Reserve. No development is now proposed in the Crown Road Reserve. Together, these lots and reserve have an area of about 72 hectares.
3. The development is controversial and has had a long history. From at least 1988, various owners of the land have lodged development applications proposing residential subdivision of the land. In 1988 and 1993, the Council granted two development consents for residential subdivision and construction of the necessary access road. Those development consents have been challenged in litigation by community members and organisations opposed to the development of the land and neighbouring land. Some of that litigation has been successful, others not. That litigation is summarised in Richmond-Evans Environmental Society Inc v Iron Gates Developments Pty Ltd, unreported, Land and Environment Court, No 40158 of 1991, Bannon J, 20 December 1991; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd [1993] NSWLEC 210; (1993) 82 LGERA 222; Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd (1994) 82 LGERA 236; Wilson v Iron Gates Pty Ltd, unreported, Land and Environment Court, No 40172 of 1996, Stein J, 2 December 1996; Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89; (1997) 130 LGERA 189; Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.
4. The previous land owners carried out development on the land purportedly in accordance with the development consents, although the lawfulness of the work was disputed. The development included constructing an access road from Evans Head township to the site, named Iron Gates Drive, and erecting a bridge over a creek for the access road, extensive clearing of the land and earthworks, and construction of internal roads and stormwater and sewage infrastructure for the residential subdivision. The previous land owners then encountered financial troubles and ceased carrying out the development. The development was abandoned. Much of the areas cleared for the residential subdivision naturally re-vegetated.
5. The current land owner Goldcoral has proposed a new residential subdivision, partly in the areas of the abandoned subdivision. That is the development the subject of the current development application and the appeal to this Court. The community remains opposed to any residential subdivision of the land. This time the Council has joined the community in opposing the proposed development of the land. The Council defended on the appeal the Panel's decision to refuse development consent. A traditional owner of Country of which the land is a part, Ms Simone Barker, is also opposed to the development. Ms Barker applied to be and was joined as a respondent to the appeal.
6. The Council's, Ms Barker's and the community's opposition are founded on ideas about the development proposed in the amended development application, the environment affected by the development, and the law applicable to assessing the development application, which are not reflective of the reality of the development, the environment and the law. Thus, my reference to T.S. Eliot's observation that there is a shadow between the idea and the reality. The shadow may be dispersed by shining a light to illuminate the reality of the development, the environment and the law. Let me explain.
7. The idea of the development is founded and framed by the excessive and allegedly unlawful developments carried out on the land by the previous land owners, as well as the more extensive and less environmentally sensitive development originally proposed by Goldcoral in the development application first lodged in 2014. Those developments, and their perceived unacceptable environmental impacts, are seared in the memory of the Council, Ms Barker and the community.
8. The reality is that none of those developments is now being proposed by Goldcoral. Goldcoral has amended the development application to propose a residential subdivision that is less extensive and confined to areas of the land that have been previously cleared, many times and over many decades, so as to avoid significant impact on environmentally and culturally sensitive areas of the land.
9. The idea of the environment is founded and framed on conceptions of what the environment might have been at the time those previous developments were proposed and carried out. Those conceptions may have been idealized - the environment was conceived to be more pristine and ecologically intact than it really was. Regrettably, the carrying out of those previous developments continued a transformation of the environment that had begun over 40 years before.
10. The reality is that the northern and eastern parts of the land were extensively sand mined in the mid-1960s to the mid-1970s. This involved the total clearance of all vegetation on those parts of the land, the dredging of those parts of the land for sand, and afterwards the re-grading and revegetation of the land in the late-1970s with plant species not representative of the diversity of the pre-existing vegetation communities.
11. These revegetated areas in the northern and eastern parts of the land were again totally cleared and extensive earthworks undertaken for the previous residential subdivision in the mid-1990s. The roads, stormwater and sewage infrastructure, and drainage channels were constructed at this time. A photograph presumably taken from an aeroplane or helicopter in the mid-1990s shows the significant extent of earthworks involved in constructing the roads and drainage channels in the northern and eastern parts of the land. Two aerial photographs taken after the works had been completed show the northern and eastern parts of the land totally cleared north of the triangular-shaped area of littoral rainforest, except for a small island of vegetation in the north. The second aerial photograph, dated as 1998, shows the cleared areas as being grassed. The first aerial photograph shows the cleared areas as exposed sand or earth, so is likely to have been taken in 1996-1997 before the second photograph in 1998. After the development was abandoned and the Court ordered the land to be remediated in 1997, regrowth vegetation in the northern and eastern parts of the land is evident in the 2012, 2013, 2018 and 2022 aerial photographs. These highly disturbed northern and eastern parts of the land are proposed to be developed by Goldcoral for the northern area of the residential subdivision.
12. The southern and western parts of the land have long been cleared for agriculture. A 1958 aerial photograph shows these areas as having been already cleared, except for the two areas where the littoral rainforest still exists today. The cleared areas, including the hill to the west, are where Goldcoral proposes the southern area of the residential subdivision. Both a 1977 and a 1980 aerial photograph show evidence of ploughed furrows in the cleared southern and western parts of the land, as well as the early stages of revegetation of the sand mined areas in the northern and eastern parts of the land.
13. The 1998 aerial photograph shows the southern and western parts of the land to be grassland, presumably for grazing. By this time, Iron Gates Drive had been constructed providing access to the land. The internal road bisecting the two areas of littoral rainforest had been constructed, as well as a road travelling southwest to northeast following the alignment of the existing electricity powerline. To the west of the powerline, there is evidence of earthworks on the hill in the western part of the land. The aerial photograph taken in around 1996-1997, depicting the exposed areas in the northern and eastern parts of the subdivision, clearly shows the two access roads, one bisecting the littoral rainforest and the other following the powerline, as well as extensive earthworks on the hill in the western part of the land, with the earth in that area being totally exposed. The photograph presumably taken from an aeroplane or helicopter in the mid-1990s also shows the earthworks and excavation on the hill having commenced. The aerial photographs in 2012, 2013, 2018 and 2022 show the southern and western parts of the site being maintained as totally cleared and grassed areas.
14. The idea of the law is founded and framed by a misconception that the strategic planning law does not provide for and facilitate the residential subdivision of the land. The long history of zoning of the land for residential purposes is overlooked in the opposition to any development of the land for the very residential purposes for which the land has been zoned.
15. The reality is that since at least 1983 the land has been zoned to permit development for residential purposes. Under Richmond River Local Environmental Plan No 3, which commenced in 1983, the land, including the areas of the land now proposed for residential subdivision (within Lots 276 and 277 and Lot 163), was zoned 2(d) Residential, 3(c) Neighbourhood Business, 9(a) Tourist and 6(c) Open Space.
16. Pursuant to that environmental planning instrument, the Council granted development consent on 20 October 1988 for the subdivision of the land in four stages to create 610 residential allotments, a four-hectare lot for tourist development, a six hectare lot for a neighbourhood centre, a 20 hectare lot for open space, and seven lots totalling 8.5 hectares for public reserves. On 19 July 1990, the Council granted development consent for the construction of an access road between Wattle Street, Evans Head and the land (Lot 277) through the wetlands. This became Iron Gates Drive. On 27 September 1991, the land for the access road was gazetted as a public road under the Public Roads Act 1902 (NSW).
17. The replacement Richmond River Local Environmental Plan 1992, which commenced in 1992, zoned the relevant areas of the land (within Lots 276 and 277 and Lot 163) Residential 2(v) Village. As the development consent granted in 1988 had lapsed, the Council granted another development consent on 22 March 1993, pursuant to the 1992 environmental planning instrument. The development consent was for 110 residential lots, plus reserves for active open space and environmental protection. On 4 June 1993, an alternative route for the access road, which differed from the route shown in the 1991 Gazette, was gazetted as a public road. Iron Gates Drive is in this alternative gazetted route.
18. The next environmental planning instrument, Richmond Valley Local Environmental Plan 2012 (RVLEP), zoned the relevant areas of the land (within Lots 276 and 277 and Lot 163) R1 General Residential, C2 Environmental Conservation and C3 Environmental Management. This is the current environmental planning instrument. Goldcoral's proposed residential subdivision is within the R1 General Residential zone and the littoral rainforest conservation area is within the C2 Environmental Conservation zone. No development on the land is proposed in the C3 Environmental Management Zone. There is a splay in the north-eastern corner of the area zoned R1 General Residential at the interface with the C2 Environmental Conservation zone. That splay coincides with an area mapped as coastal wetlands under successive State environmental planning policies, being State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14), State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP) and State Environmental Planning Policy (Resilience and Hazards) 2021 (RAH SEPP). The area mapped as coastal wetlands under these instruments is within the C2 Environmental Conservation zone under RVLEP and does not intrude into the R1 General Residential zone.
19. The proposed subdivision and later development for residential purposes of the land zoned R1 General Residential are consistent with the objectives of the zone. As I have noted, the land has long been zoned for residential purposes to provide for the housing needs of the community. The land, although separated from the Evans Head township, has been identified as being a suitable location for residential development. The proposed development realises this strategic planning objective. The proposed conservation of the littoral rainforest and other environmentally sensitive areas on the land zoned C2 Environmental Conservation and C3 Environmental Management is consistent with the objectives of these zones. The consistency of the proposed development with the objectives of these three zones is a matter to be considered when determining the development application, under cl 2.3(2) of RVLEP.
20. The strategic planning objective promoting residential development of the land, reflected in the zoning of the land as R1 General Residential under RVLEP, has continued since 2012 in subsequent strategic planning documents of both State Government and the Council.
21. The NSW Department of Planning and Environment's North Coast Regional Plan 2036, published in 2016, identifies the Iron Gates land as an "Urban Growth Area" in the Richmond Valley local government area: Figure 17. The Plan's stated purpose is to provide "an overarching framework to guide subsequent and more detailed land use plans, development proposals and infrastructure funding decisions.": p 4.
22. The Council's Local Strategic Planning Statement: Beyond 20-20 Vision, published in May 2020, sets a 20-year planning vision for the Richmond Valley local government area. The Statement identifies one of the "several potentially large developments proposed at Evans Head" as "the Iron Gates subdivision (with potentially 174 residential lots)": p 16. The Statement reproduces, as Figure 15 of the Statement, Figure 17 from the North Coast Regional Plan 2036, which identifies the Iron Gates land as an Urban Growth Area. The Statement records the need to construct Stage 2 of the upgrade of Evans Head's STP to meet the additional demand from future urban growth areas, including the "potential subdivision at the Iron Gates (174 lots).": p 34.
23. The Department of Planning and Environment's North Coast Regional Plan 2041, published in 2021, sets a 20-year strategic planning framework for the North Coast region. It represents a five-year review of the region's strategic planning settings since the North Coast Regional Plan 2036, published in 2016: p 6. The Plan continues to identify the Iron Gates land as an Urban Growth Area: Figure 22. The Plan states that one of the land use planning strategies is to "direct growth to identified urban growth areas": p 61.
24. The Council's Richmond Valley Growth Management Strategy, published in April 2023, states its purpose to be "to support and guide the growth of both residential and employment land in the Richmond Valley", including at Evans Head. The Strategy identifies the Iron Gates land as one of the areas of growth of residential land at Evans Head, noting: "There is existing land zoned for residential purposes at Iron Gates.": p 29.
25. This long history of zoning the Iron Gates land for residential purposes and continuing to identify the land as an Urban Growth Area to meet the demand for residential development at Evans Head needs to be given weight in determining the development application for the subdivision of the land for residential purposes. In BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]- [118], McClellan CJ said:

(2004) 138 LGERA 237

(1992) 81 LGERA 132

(1982) 29 SASR 321

(1980) 2 NSWLR 630

(1997) 130 LGERA 189

(1993) 82 LGERA 222

(1994) 82 LGERA 236

(1998) 193 CLR 72

(2018) 235 LGERA 345

(1975) 2 NSWLR 614

(2004) 137 LGERA 178