20 These comments of Lord Reid have been cited and adopted in applying and interpreting subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531, Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323, GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; Port Stephens Shire Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 231.
111 I also note the following relevant comments of Craig J in Atkins v Maitland City Council [2010] NSWLEC 36, which can be applied in coming to a practical and commonsense interpretation of clause 15, which I consider requires an actual assessment of factual levels:
24 The principles that should govern the interpretation of a planning instrument were not in contest. Emphasis was placed by the respondent on the need to give the LEP and the particular provisions under consideration a purposive interpretation. These principles are well elucidated in authorities such as Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 and Matic v Mid-Western Regional Council (supra). Application of these principles do not detract from my rejection of the Respondent's submissions. As I have earlier indicated, focus must be upon the text of the instrument itself and, subject to what follows, not upon some extraneous material which is unnecessary to give meaning to the language of the LEP itself, even considering its context (Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380).
112 With regard to the other issues if the proposal is otherwise permissible, I note firstly that the development of the land requires a substantial amount of filling (approximately 59000 cu m) in order to provide access to the flood free platforms of the industrial units. This proposed filling is required because the longer term planning envisages a flood levee to protect this and adjoining land from flooding. In the circumstances where the levee is completed, such filling would not be required. Therefore the extent of the proposed filling is not consistent with the Taminda strategy, in my assessment.
113 A consequence of this filling is that the existing overland flows will be diverted. The diverted flows will result in increased velocities along the western boundary of the land, within the adjoining farmland. This increase will likely be impacted on by the concentrated discharge of the proposed pipe, through the 70m retaining wall.
114 Whilst the increase in velocity appears marginal at 0.1 m/s, Dr Martens says nevertheless this is unacceptable because the existing velocity to prevent soil erosion is already exceeded for the subject soil type. I therefore cannot conclude that objective 2(a) of this zone is satisfied because the risk to property is not reduced. Insofar as the applicant declined to address this matter by the deletion or reduction in Unit B7 to contain the overland flows on the subject property, I consider this another negative aspect of the proposal.
115 The other aspect of the filling and overland flows concerns the effect of the proposed retaining wall at the back of the existing lots 15 - 22 Kingsford Smith Drive. These lots currently have the benefit of an inter - allotment drain that is designed to accommodate a 1:5 storm event. It is apparent that in larger storm events there will be general overland flows following the land contours onto the subject land. As the retaining wall will block this flow, I consider this should be resolved initially. The absence of a resolution of this matter is a negative aspect of the proposal in my opinion.
116 Insofar as some filling has been placed on the site, I do not consider this has been adequately assessed to conclude that it is free for contamination, or that it is of minimal significance to not require a detailed assessment. I find it somewhat puzzling that while the site was grid sampled, the stockpile was not tested, even though it is proposed to shift the stockpile in the development. I do not consider the potential contamination risk has been adequately investigated in the preliminary assessment.
117 As I have mentioned previously, this development is proposed in advance of major infrastructure identified in the Taminada strategy. Dr Marten's evidence on the existing overloaded sewer causes me particular concern. This sewer traverses the subject property and is subject to unsatisfactory surcharge in wet periods. Even though a preliminary design concept was submitted, Dr Martens's opinion that a significantly greater period of detention (and corresponding land and structure) is required for this development, should be addressed prior to development consent being granted.
118 Likewise the evidence on the provision of an adequate water supply to the development causes me concern. Insofar as the applicant relies on the current practice of making some arrangements with council by way of conditions of consent, it seems reasonable to me that the availability of adequate water supply should firstly be established.
119 Dr Martens preliminary estimates indicate that the existing water main to the Taminda industrial estate is unlikely to be able to deliver and maintain sufficient water supply, or pressure to maintain safe fire fighting pressures. In the circumstances where this land is designated for 'future development', I think it appropriate that the availability of services such as water supply be determined initially, so other areas are not disadvantaged by some developments "effectively "jumping the queue" for limited services, which may be designated for other existing industrial land. If it was demonstrated that adequate water supply could be provided to this development, representing orderly development of the land, this concern would be addressed but that does not appear to be the case.
120 The remaining issues concern the orderly development of this land. Put in the context that the current controls in the TLEP do not permit industrial development in the 1(c) flood liable zone, I consider it appropriate that due weight be given to the provisions of the Taminda Development Strategy that has been adopted by council. This seems to outline a sequential release of industrial land to meet future demand, balanced against demand and the provision of services. To date Precincts 1 - 4 have been released following the provision of flood levees.
121 The subject land is in Precinct 6, which is designated "as part of a longer term economic strategy economic strategy…" According to the strategy, the proposed development of this land is based on the construction of the major flood levee bank adjacent to the Jewery Street extension, which is major new thoroughfare. As the proposal ignores the levee and new road by filling the land and apparently make no contribution towards this major infrastructure from which it will ultimately benefit, I do not consider this represents orderly development.
122 This is not to say that an appropriate development in Precinct 6 is prohibited. But based on the evidence, including the inadequacy of water supply and lack of certainty with the sewer augmentation into the council system, this indicates to me that the development servicing would be on an ad hoc basis, which is not orderly development, as stated By Dr Martens, on whose opinion I rely.
123 The other important control is the draft LEP 2009 wherein the site is proposed to be rezoned RU4 Rural Small Holdings. Whilst this does not include similar provisions to clause 15 (TLEP), nevertheless there are proposed restrictions on land filling and reference to flooding controls. But there was no evidence to confirm that this instrument was imminent or certain. Therefore the savings clause applies whereby this draft instrument is considered on the basis of an exhibited plan and not given determinative weight.
124 Accordingly, it is apparent that filling of areas is a significant concern where development consent would be required for filling of the magnitude proposed in this matter. Of some relevance is Aim 1.2 (3);
(d) to promote ecologically sustainable urban and rural development and control the development of flood land; and
RU4 zone objective:
+ To ensure that development does not unreasonably increase the demand for public services or public facilities.
125 Since the Flood Management Study of 1993, which is the basis for cl 15 of the TLEP, further flood investigations have been undertaken presumably for consideration of the cl 7.5 provisions. Those investigations show that the land is flood liable whereby certain criteria is to be determined prior to any consent.
126 In summary then, I do not consider there are any provisions in the draft LEP which should be given such weight, over the provisions of the TLEP that would result in the conditional approval of this development. Instead it seems to me that the public interest is well served by the refusal of this application because it does not satisfy clause 15 of the TLEP and satisfactory arrangements have not been made for the orderly provision of essential services. There is no demonstrated demand for this industrial land that would warrant the setting aside the provisions of the Taminda strategy.
Court orders
127 The orders of the Court are:
1. The appeal is dismissed.
2. Development consent for the filling of the land and construction of 11 industrial units at Lot 23 DP 260129, Dampier Street, Taminda is refused.
3. The exhibits may be returned except 1, 2, 10, 11, 12, 14, A, G and Q.