McIntyre and Ors v Pittwater Council

OBJECTOR BY LEAVE: Mr P R Clay (Barrister) for Sydney Water Corporation SOLICITORS: Phillips Fox

IN THE LAND AND Matter No. 10736 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 21 July, 2000

Richard John McIntyre and Ors Applicants v Pittwater Council Respondent

The proposed development the subject of appeal comprises two parts.

The first part is in respect of the proposed subdivision of an area of land at Warriewood known as Sector D, being Lots 25 and 27-31 in DP 5464 and Part Lot 24 in DP 5464 for industrial purposes.

The second part of the application seeks approval for a Concept Plan in respect of Sector C, being Lot B in DP 400488 and Part Lot 24 in DP 5464 for medium density residential purposes.

The amended statement of issues filed on behalf of the respondent council raises only two issues as follows:- 1 Whether the application ought to be approved having regard to its location within the buffer area of the Warriewood Sewage Treatment Plant in terms of: (a) objections lodged by Sydney Water Corporation; and

(b) the circular issued by the Department of Urban Affairs and Planning in respect of these buffer areas.

2 Whether the application ought to be approved having regard to the fact that the proposed creekline corridor is not proposed to be in public ownership.

At the commencement of the hearing Mr Pickles appeared for the council and informed the Court that the respondent would offer no evidence in relation to issue 1. In addition, issue 2 had been resolved to the extent that the applicants agreed that land within the proposed creekline corridor could be placed in public ownership subject to the resolution of the question of adequate compensation. Issues also remain in respect of a related question, being the application of the council's s 94 Contributions Plan.

By notice of motion dated 25 January 2000 Sydney Water Corporation applied for leave to appear pursuant to s 38 of the Land and Environment Court Act 1979 ("the Court Act") in relation to what was then issue 10 in a draft statement of issues. Issue 1 referred to above is essentially in the same terms as draft issue 10. On 7 February 2000 Cowdroy J granted leave for Sydney Water to appear in relation to the nominated single issue.

The hearing proceeded on the basis that Sydney Water, represented by Mr Clay, had carriage of the issue arising out of the location of Sector C within the buffer area of the Warriewood Sewage Treatment Plant.

The sole outstanding real issue between the council and the applicants is whether the application of the council's s 94 Contributions Plan is reasonable and the adjustments to be made for the value of creekline land which the council requires to be dedicated as a condition of consent to the development application.

The original proposal for Sector D was a subdivision into 24 lots. The amended proposal before the Court will create 11 allotments varying in area from 2,940 square metres to 21,350 square metres, all with access from MacPherson Street, Warriewood along a right of way 17.5 metres in width, located approximately 50.7 metres from the intersection of MacPherson Street with Warriewood Road.

Sector D is land zoned Light Industrial 4(b). Industries other than those specified in Sch 1 to Pittwater Local Environmental Plan 1993 ("the LEP") are permissible in the zone with development consent.

Sector C comprises 1.9 hectares and is irregular in shape.

The Concept Plan for Sector C contemplates 42 residential units each with an enclosed garage and carport. The land is zoned Residential 2(e). In the zone, group buildings are permissible with development consent. No issue is raised that the type of building depicted in the masterplan may not be approved under the provisions of the LEP at a later stage.

There is a proposed drainage reserve which runs through Sector C. This land is within the creekline corridor zoned Special Uses 5(a) (Drainage).

Land to the south, west and north of Sector C is zoned Non-urban 1(b).

Land to the east and north east of Sector D is zoned Residential 2(a).

The Warriewood Sewage Treatment Plant ("the STP") is located generally to the south east of Sector C and south of Sector D on the opposite side of MacPherson Street.

The south east corner of that part of Sector C identified for residential development is immediately adjacent to the north west corner of the site of the STP.

The STP serves the Warriewood, Whale Beach and North Narrabeen areas. The outfall is located at Turiemetta Head adjacent to Warriewood Beach.

The land was originally zoned in 1982 as Light Industrial 4(b2) under Warringah Amending LEP No. 12. A corridor through the land was zoned 6(c) (Proposed Recreation). The open space zoning recognised the necessity to provide for stormwater drainage along the Narrabeen Creek Corridor. Although slightly amended, the Warringah LEP 1985 maintained the light industrial and open space zones in respect of the subject land.

In late 1985 the Warringah Council attempted to rezone the land for residential purposes consistently with the revised strategic objectives for the Warriewood Valley. Only a small portion of the site (Sector C) was rezoned for residential purposes and the open space classification was changed to 5(a) Special Purpose (Drainage).

After 1992 Pittwater Council retained the established zoning regime.

The subject site falls within the Warriewood Valley Development Area identified in the Ingleside Warriewood Urban Land Release Draft Planning Strategy.

The Draft Planning Strategy map identifies areas C and D as Undetermined STP Buffer. The strategy notes that these sectors comprise existing zoned land within the Warriewood Valley which fall outside the study boundary for the release areas and that these areas are affected by the 400 metre buffer from the Warriewood STP and as such an examination of the appropriateness of the current and/or any proposed zoning should be considered as part of the advice obtained with regard to the buffer issue for the STP.

Department of Planning Circular No E3 published on 17 March 1989 describes a general policy on buffer areas for sewage treatment plants. It states that ideally buffer areas should be created through local environmental plans and be at least 400 metres wide but may be varied to suit local conditions. It recommends that to obtain the most efficient use of the land as possible, buffer areas should also be used for compatible purposes. It is recommended that councils avoid rezonings that permit more intensive development and take advantage of any opportunity to extend the buffer area.

A Sewage Treatment Plant (STP) buffer zone policy prepared by Sydney Water in March 1997 confirms that in principle the maximum width of a buffer zone should be 400 metres from the existing plant property boundary. It notes, however, that in many cases adjoining development already encroaches on the 400 metre zone and that several STPs have residential development, permitted prior to current policy standards, within 400 metres. In those cases it is suggested that Sydney Water needs to avoid further encroachment into STP buffer zones where possible.

In December 1998 representatives from Sydney Water, Department of Urban Affairs and Planning and the Environment Protection Authority prepared a recommended approach for implementing planning controls in the buffer area around Warriewood STP. The document was prepared in response to a request from Pittwater Council in July 1998 for more detailed advice from DUAP and Sydney Water about appropriate land uses within the buffer area. After discussing the means of defining a buffer area, the guiding principles for rezoning and other planning decisions, the paper recommends that one guiding principle should be that land use planning decisions in the buffer should recognise that potential odour, noise and visual impacts will be more pronounced closer to the STP boundary and less pronounced on the fringes of the buffer area.

Dwelling houses, group buildings, residential flat buildings or dual occupancy are specifically identified as inappropriate land uses in the Warriewood STP buffer.

In a situation where a development application is lodged for development within the buffer in an area zoned residential, the paper recommends that council should consider whether or not the proposal will result in significant intensification of residential development. Development in residential zoned areas in the buffer which will result in significant intensification of residential development (eg town houses, residential flat buildings and other types of medium or high density development) is not recommended.

Harvey Sanders, the town planning consultant retained by Sydney Water, states that it was in the context of the above history that Sydney Water formulated its objection to the development application for Sector C and recommended that council not approve the residential component of DA 570/99 because it represented a significant intensification of residential development within the Warriewood STP buffer zone. In his opinion the buffer zone that has been established around the Warriewood plant has a legitimate role to play in the future planning of the area on the basis of relevant town planning and land use management considerations. Maintaining the integrity of the buffer zone would in his opinion also be in the wider public interest in the context of the broader operational characteristics of the plant and the allocation of public resources to its operations.

In a letter to Pittwater Council received on 9 June 2000 the Department of Urban Affairs and Planning recognised the concerns raised by Sydney Water in respect of the residential zoning of land within the 400 metre buffer area of the Warriewood STP. In the circumstances and in view of the joint paper prepared for council by DUAP, EPA and Sydney Water, the department encouraged council to consider the preparation of an appropriate LEP to control development within the buffer area.

It is a secondary treatment plant involving screening, grit removal, sedimentation and chlorination with effluent discharged to the ocean. The plant is designed with a nominal capacity of 80,000 EP. The current average dry weather flow to the plant is approximately 15.5 megalitres per day. The plant is projected to require enlargement by 75 per cent to a capacity of 140,000 EP to be able to process the increased sewage inflow resulting, in part, from additional urban development of the Warriewood Valley and the Ingleside area.

When the ocean water level prevents gravity discharge the treated effluent is pumped to the discharge point by means of three effluent booster pumps located in a machinery building. In the case of an emergency, excess flows can be discharged to an unnamed creek that flows into Mullet Creek.

The Warriewood STP will be required to be augmented at some time in the future to cater for increases in population within the catchment area of the plant and in response to evolving regulator and community expectations for waste water treatment.

Sydney Water released an Odour Study Report in November 1999. The report detailed the odour impact of the STP. Odour samples were taken from the aeration tank, clarifier and primary sedimentation tank as area sources, while the biofilter outlet, sludge heater, waste gas burner and sludge digester gas relief valves were categorised as point sources. The plant has installed a package biofilter to treat air extracted from the sludge handling area, the inlet channel and the grit tanks. The biofilter was the measurement point for the combined treated emissions of these sources.

Wind rose presentations of the ambient wind speed and direction indicate that there is a predominance of higher wind speed conditions radiating particularly from the north east quadrant with another small band of winds coming from the south west to west regions. The predominant low wind speed conditions are from the sector from the west to the north west.

Sydney Water has adopted odour criterion to indicate the area within which residential amenity is predicted to be affected to a level where residents may complain about odour impacts. All verified odour complaints received between January 1997 and May 1999 lie within the Sydney Water Odour Criterion Line. This is the period of time in which the biofilter has been in operation and is the current plant situation under which odour samples were taken for the Odour Study Report. The same criteria was adopted by Mr Rodney MacKenzie, Sydney Water's consultant engineer, who gave evidence in these proceedings for the period between January 1997 and December 1999. Complaints in that period of time have mainly occurred to the east and south east of the STP.

Mr MacKenzie says that if the predictions from dispersion modelling of odour releases from Warriewood STP using the Sydney Water Odour Criterion are examined, the potential odour impact of the current plant extends approximately 800 metres from the eastern boundary and at least 500 metres from the western boundary. His opinion is that as Sector C lies within the prescribed area of odour impact it is likely that at some time conditions will exist in that sector which result in odour annoyance to individuals. He foreshadows that if residential development were permitted in this sector, the residents would be anticipated to experience conditions that, at times, will cause annoyance due to odours emanating from Warriewood STP. Recent modelling suggests that there would be greater than one odour event per month in the south eastern corner of Sector C.

On the other hand, Dr Kerry Holmes, who is an environmental chemist retained by the applicants, suggests that because Sector C is upwind of the STP it is therefore very likely, on the balance of probabilities, that Sector C will experience less frequent odour than the areas to the east of the plant where odour complaints have been logged in the past. She further notes that the area to the north east, which contains residential development, does not appear to suffer extreme odour annoyance at present. She concludes that it is very likely that while Sector C will experience some odour from the plant on occasion, that this will be no more than and very likely less than that experienced in current residential and commercial areas. On the basis of information collected by Sydney Water and modelling undertaken by them, Dr Holmes considers it to be very likely that Sector C would experience less odour than areas where there is currently residential development and judging from the relatively low level of complaint data, apparently reasonable levels of impact from the plant.

Dr Holmes recognises that the plant may need to be augmented in the future. However, she says it is likely that this would have to be done in a way which would not result in an increase in odour impacts to the existing residential areas because it is likely to be unacceptable to existing residential development within the 400 metre buffer zone.

Although she finally concludes that development consent should not be refused on the grounds of odour, Dr Holmes nevertheless recommends that if residential development is approved in Sector C that prospective purchasers be made aware of the fact that there is an STP to the south.

The Court is now in the unenviable position where it has before it two conflicting opinions by experts in the field of odour emission and impact who use the same set of criteria to reach a different conclusion.

A number of local residents have given evidence. Although they admit they have been aware of an odour which they attribute to the plant from time to time when in close proximity to the STP, none of them have been concerned about any impact on amenity in their homes. Their principal concern arising from the impact of the location of the STP appears to be that the preclusion of residential development in Sector D will give rise to industrial development in that area which they see as potentially incompatible with the adjacent existing residential development.

Although there was a suggestion at the commencement of the hearing that council had approved medium density residential development within the STP buffer zone in recent years, that suggestion was not ultimately proved as a fact, except for several developments approved for dual occupancy.

The applicants' consultant town planner, Charles Hill, argues that as the 400 metre buffer area is intended to be a guideline measure only and is not dictated by legislation, it by no means illustrates the true extent of odour impact for every situation. He states that it is considered by many air quality experts that a more accurate reflection of odour conditions, if a blanket policy is to be applied, is to calculate the 400 metre buffer area from the nearest open treatment structure rather than from the boundary of the plant. He says that in the case of the Warriewood STP, the nearest treatment structure (being the aeration tanks) is approximately 400 metres away from the redevelopment area of Sector C. This assessment does not seem to take account of the location of a new retention basin currently under construction and inspected on the view. He further points out that odour annoyance levels associated with the STP are low, while periodic impacts have been shown to be mostly confined to areas immediately east of the plant. Although Sector C is located within the advocated buffer area, Mr Hill does not consider adverse impacts from odour annoyance to affect the land to any degree. According to Mr Hill, the location of the site some 400 metres from and to the north west of the nearest odour producing structure of the STP is reflected in and offers some explanation to the findings of the qualitative surveys which indicate a generally low level of odour annoyance problems in areas immediately north of the STP.

In the period immediately prior to the commencement of the hearing of this appeal the EPA wrote to the solicitors for Sydney Water on 21 June 2000 confirming that pending the completion of a formal odour policy the EPA continues to support the approach adopted in the joint paper (1998) that residential land use within the buffer zone is inappropriate because of the impacts of the STP on residential amenity, in particular, offensive odour. Other, less sensitive land uses are considered appropriate to be located within the buffer zone. This latest confirmation from the EPA lends significant weight to the opinion of Mr Sanders against the more liberal approach recommended by Mr Hill.

Although Mr Hill estimated during his evidence in chief that the population density generated by the proposed medium density development would be approximately the same as the density generated by a development of single dwellings, in cross-examination he appeared to accept that there could be an increase in excess of 20 per cent if the proposed medium density development was allowed to proceed ahead of single dwellings. The increase in the number of households from 22 to 42 will be significant.

The studies and conclusions based on the source of odour complaints must be considered in the light of the small resident population and the existing uses, such as market gardening, in the area north west of the STP and in particular Sector C. Sector D is also largely undeveloped for residential purposes and therefore unlikely to be a major source of complaint.

Notwithstanding that the installation of the biofilter in about 1997 appears to have reduced the level of complaint based on odour impact, nevertheless, the Court is concerned that it is an inherent characteristic of an STP that odours will be generated by the operation of the plant at all times. There must be a realistic expectation that the odours will be noticeable beyond the plant itself and the boundaries of the land upon which it is constructed from time to time. The extent of the impact will depend upon the nature of the incident giving rise to the emission and prevailing weather conditions. The plant at Warriewood heretofore has been, to a large extent, insulated against complaint from persons living to its immediate north and north west by the category of uses of the land within the 400 metre buffer zone at that location.

The Court recognises that Sydney Water, as the operator of the STP, is carrying out an important and essential public function which is difficult enough to perform without the added constraint of an interface with residential development, particularly medium density housing. The refusal of the present development application in respect of Sector C will not have the effect that the land is sterilised. There is no evidence that the existing uses are not viable. Nor is it suggested that some form of low density housing comprising single dwelling houses is not feasible. No justification, apart from the zoning, has been put forward to balance the potential for future conflict between the impacts from the normal operation of the plant, particularly in an expanded form, and the residential amenity of more than 80 new residents.

It is extraordinary that the council should take a neutral stand on this issue by electing not to assist the Court by offering any evidence of the matter, yet abstaining from granting an approval or allowing this aspect of the development to be determined by the consent of the parties. This lack of assistance from the council has, in the circumstances, only served to strengthen the Court's misgivings about the residential development.

The primary concern of Sydney Water is that residential development immediately adjacent to the north west boundary of the STP land could cause it to constrain its operations which after all are conducted for the public benefit or to cause it to expend capital funds which might otherwise be avoided if a proper buffer against residential development is maintained. It is not enough, as Dr Holmes suggests, that the prospective residents be warned that the dwellings are adjacent to the STP.

No explanation has been given for the council's failure to react to the recommendations made to it in relation to the rezoning of Sector C.

Although the Court is able to recognise the legitimate objections raised by Sydney Water, it is also mindful of its responsibility to ensure that development unsuited to a particular location is prevented wherever that is preferable. This is such a case. In principle the Court should not be a party to the creation of a situation in which basically incompatible land uses are juxtaposed, thereby avoiding the prospect of future conflict.

It should not be taken that by reason of its determination to refuse consent that the Court is saying any more than that this land is not suitable for medium density housing development while the potential for odour impact from such a proximate location exists. It may well be that some alternative proposal for residential development might be accommodated on the land but any such proposal will have to be considered on its own merits when and if it ever materialises.

After consideration of the whole of the circumstances and for the above reasons the Court has decided that the development application in so far as it relates to the residential development on Sector C must be determined by refusal of consent.

There is no dispute that the applicants are entitled to a grant of development consent subject to conditions.

There is, however, a serious conflict between the applicants and the respondent in relation to s 94 contributions demanded pursuant to the draft conditions of consent proposed by the council and the reasonableness of other conditions.

The first issue raised by Mr Davison SC on behalf of the applicants is that having regard to the terms of the s 94 Contributions Plan, there is no justification for its application in circumstances where the consent the subject of the present application involves no more than a rearrangement of the lots in a paper subdivision. His submission is that the contributions plan only calls for a monetary contribution at a time when consent for the actual use of the land and buildings is being sought.

The plan includes a works schedule. Contribution rates are determined on a per dwelling basis for residential development and per square metre for industrial/commercial development.

As Mr Pickles points out on behalf of the council, the contributions plan states:- Development in each sector will be subject to contributions to enable the delivery of public facilities and public amenities.

Accordingly, the council contends that all forms of development, including the subdivision of land, as defined in s 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") will attract a contribution. In response to the suggestion that the proposed subdivision is not likely to require the provision of or increase the demand for public amenities and public services within the area pursuant to s 94(1) of the EP&A Act, Mr Pickles submits that as the subdivision has the ultimate purpose of permitting development of the land in Sector D for industrial purposes, it will itself generate a demand by permitting the construction of drainage or road works.

Section 2.4 of the contributions plan expressly provides that in the case of subdivision, the contribution is to be made prior to the issue of the subdivision certificate.

Pursuant to s 94(2) of the EP&A Act, a condition requiring the payment of a monetary contribution is to be imposed only to require a reasonable contribution for the provision, extension, or augmentation of the public amenities and public services mentioned in s 94(1).

Apart from the subsequent regulatory provisions of s 94, the only qualifications on the exercise of the power of the Court to require the payment of a monetary contribution or the dedication of land or both pursuant to s 94 are that the development will or is likely to require the provision of or increase demand for public amenities or public services within the area and that the dedication or contribution be reasonable (s 94(12)).

Whether or not the development for which consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services is to be determined by reference to the possibilities arising from any change brought about by the proposed development rather than confining attention to the initial limited effect of defining boundaries of individual allotments.

The determining authority is entitled to assume that the subdivision is occurring to facilitate the use of the land for a permissible purpose. In the present case that use has been identified as an industrial use which may be carried out within the zone in accordance with the provisions of the LEP. The subdivision of the land immediately raises the prospect that the land will be put to a different use to that which is existing and that the land will be developed in accordance with the new pattern of subdivision.

Dwelling houses, group buildings or residential flat buildings are prohibited uses within zone No. 4(b). The categories of land identified for the purposes of the s 94 Contributions Plan are either residential development or industrial/commercial development. As this land can only be used for an industrial or commercial purpose the contributions plan makes specific provision for that future use.

The plan of subdivision pays no regard to the boundaries of the land within the Special Uses 5(a) zone, part of which is included within Lots 1 to 5, 11 and 10.

The applicants do not cavil with the arithmetic calculations carried out to determine the monetary contribution.

Whether or not the imposition of conditions relying upon the s 94 Contributions Plan are unreasonable in the circumstances is a separate question.

The council has drafted a condition that the subdivision plan be amended so as to create separate allotments to facilitate the future dedication or acquisition of the special use land by the council.

The draft conditions also contemplate that the applicants may elect to transfer the special uses land to the council as a material public benefit in which case the s 94 Contribution is assessed at $1,362,998. If the applicants elect to carry out specified creekline corridor works then the council will further reduce the s 94 contribution to an amount of $555,057. Otherwise, the monetary contribution required is $2,042,263.

If the Court decides a monetary payment is appropriate the applicants are prepared to accept a condition whereby they are required to pay a contribution of $2,042,263 prior to the commencement of works.

The applicants resist any reference to the prospect of the dedication of the land along the creekline corridor or to a voluntary carrying out of works within the drainage reserve. At the outset the applicants says they have no intention of dedicating the land voluntarily. A secondary consideration, which obviously forms the basis for their refusal to dedicate the land is that the value attributed to the land by way of a credit against the s 94 contributions is derived from the contributions plan.

The credit allowed for the value of the creek corridor land is calculated at the rate of $42 per square metre in respect of a total area of 16,173 square metres. The value of the works is calculated at the rate of $34.32 per square metre for the same area.

The total contribution payable for the purchase of land and the construction/embellishment of the creekline corridor is calculated at $895,740.

The value of the corridor land within the subject property is assessed at $42 per square metre at $679,226 while the works are assessed at $555,057.

According to Mr Davison, the council's use of the number of square metres as a measure for the calculation of s 94 contributions demonstrates the fallacy of its argument that the demand for the facilities and services identified in the s 94 Contributions Plan arises as a consequence of the approval of the subdivision plan.

The contribution rates applied to this development are in respect of traffic and transport facilities, water management facilities, off road pedestrian and cycleway facilities and bushfire protection facilities.

The LEP requires that any future development of the land for any purpose other than a purpose for which development is prohibited may be carried out only with development consent.

The s 94 Contributions Plan identifies the anticipated extent of development for industrial or commercial purposes within the area as comprising 53.94 hectares of land which is already developed or assumed to be developed for those purposes.

Pursuant to the contributions plan the proposed facilities will be provided over the period 2000 to 2010 "as development occurs" .

The approval to the plan of subdivision in the present case will not immediately give rise to a physical demand for any of the proposed facilities except those described as water management facilities. The construction works associated with the subdivision itself could foreseeably have an impact on stormwater run-off within the neighbouring catchments. No demand will be placed upon other facilities contemplated by the s 94 Contributions Plan until construction of the actual industrial development takes place.

The Court considers it reasonable for there to be the payment of a contribution in respect of water management and multi-functional creekline corridors pursuant to the conditions of development consent for subdivision.

Mr Davison makes a further submission that the s 94 contributions will provide facilities which cater for development outside the area of the Warriewood Valley. In other words, the benefits of the trunk drainage to be constructed within the Warriewood Valley extend beyond the Valley itself. The plan states:- Management of the quantity and quality of stormwater run-off emanating from new development in the Warriewood Valley is required to: _ protect down-stream properties from local flooding as a result of development of the Valley;

_ enhance long-term environmental protection of the receiving waters including the Warriewood Wetlands and Narrabeen Lagoon;

_ conserve and maintain integrity and quality of remnant native vegetation along creeklines to provide a functioning habitat for birds and native flora;

_ introduce and/or enhance migration and wildlife corridors and establish riparian vegetation along Narrabeen, Fern and Mullet Creeks;

_ protect and restore a range of aquatic habitats within the creeks;

_ preserve and enhance the existing environmental values of the Warriewood Valley; and

_ provide for environmentally sustainable use of creekline corridors.

I agree with Mr Pickles that there is no evidence to prove that council has not taken into account the value of benefit to others in arriving at the rate adopted for the purpose of calculating contributions.

The wording of the causal nexus between development and the water management facilities, as stated in the contributions plan, identifies the demand as arising from the stormwater run-off emanating from new development in the Warriewood Valley. The Court is not persuaded that the contribution for water management facilities is unreasonable for the reasons put forward by Mr Davison on behalf of the applicants.

In circumstances where the developer has no intention of making a material public benefit contribution by dedicating the land as the council expects in this case, there is no utility served by having a condition of development consent to that effect. Furthermore, the allowance at the rate of $42 per square metre takes no account of the actual value of the land to be dedicated. The rate is taken from the contributions plan and is based upon the total value of all lands within the creekline corridor.

The conditions of consent which require a monetary contribution or contemplate dedication of the creekline corridor land should be deleted and replaced with a single condition which requires the applicants to pay the sum of $895,740 as a s 94 contribution for water management and multi-function creekline corridors prior to the commencement of any works.

The submission by Mr Davison that the contribution should be calculated on the basis of the change brought about by the subdivision, namely, an increase in the number of lots from 7 to 11 is rejected as unworkable and untenable within the concept of the s 94 Contributions Plan. The configuration of the land area is changed entirely by the plan of subdivision and it is the achievement of that change which creates the demand for the stormwater drainage works even though the ultimate potential scope of the change will not be manifest until the actual industrial use commences following a further development consent. It is appropriate therefore to calculate the contribution on the basis of the total area of the land which is to be subdivided. The Court's understanding is that the contribution of $895,740 has been calculated in that way.

Proposed condition 4 requires the applicants to comply with the relevant provisions of cll 78A-I of the Environmental Planning and Assessment (Amendment) Regulation 1998. Without limiting the generality of the condition the council says cll 78D, 78E, 78F, 78H and 78I are relevant to the application. The Court does not propose to embark upon an inquiry, unaided by detailed submissions or evidence, to ascertain whether particular regulations are applicable. The proposed condition is in effect advisory only. It should not be imposed.

Condition 13 relates to a site specific stormwater management plan which contemplates the development of Sectors C and D and is therefore no longer relevant or capable of application in its present form.

Condition 14 has been amended to require water quality monitoring to be carried out by the applicants up to 12 months after the completion of the subdivision works and now appears to be in a reasonable form.

Further conditions relating to the protection of a coastal swamp, investigation of site contamination, protection of trees and the building of kerbing and guttering along the Warriewood Road boundary all appear to the Court to be related to the re-subdivision of the land and the subdivision works contemplated in the Statement of Environmental Effects.

Condition 17 is dependant upon the applicants electing to carry out creekline corridor works. This option has been deleted from condition 12 and is therefore irrelevant.

Condition 28 refers back to the stormwater management plan required by condition 13 so that the comments made in respect of the earlier condition also apply to condition 28.

Condition 38 requires a stamped copy of the approved plans to be kept on the site at all times during the carrying out of any site works. Following amendments made to this condition it now appears to be reasonable.

The development application contemplated that the consent would incorporate the approval of the concept plan for Sector C and the subdivision of Sector D. The Court's rejection of the concept plan for Sector C strictly means that the development application should be determined by refusal of consent in respect of the entirety of the proposal.

If the applicants propose to take the benefit of a consent to the subdivision plan in Sector D then some further consideration will need to be given to the final form of the conditions of consent after taking into account the observations made by the Court in respect of those conditions which remain in dispute.

The appropriate course in the circumstances is to make a formal determination that the application is refused in respect of the proposal for Sector C, whereas the proposed subdivision of Sector D can be approved subject to the settling of the final form of conditions.

The parties are granted leave to bring in a form of final orders that reflect the Court's determination and which can be made by consent. If the form of final orders cannot be settled by agreement within 21 days, then either party has liberty to apply on five (5) days notice. Otherwise the development application will be determined by refusal of consent.

In the meantime, the exhibits will be retained.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.