Motorplex v Port Stephens Council and anor

Motorplex v Port Stephens Council and anor - [2008] NSWLEC 1280 - NSWLEC 2008 case summary — Zoe

[24]

(c) preventing the fragmentation of grazing or prime agricultural lands, protecting the agricultural potential of rural land not identified for alternative land use, and minimising the cost to the community of: (i) fragmented and isolated development of rural land, and (ii) providing, extending and maintaining public amenities and services, and (d) protecting or conserving (or both protecting and conserving): (i) soil stability by controlling development in accordance with land capability, and (ii) trees and other vegetation in environmentally sensitive localities where the conservation of the vegetation is likely to reduce land degradation or biodiversity, and (iii) water resources, water quality and wetland areas, and their catchments and buffer areas, and (iv) land affected by acid sulphate soils by controlling development of that land likely to affect drainage or lower the water table or cause soil disturbance, and (v) valuable deposits of minerals and extractive materials by restricting development that would compromise the efficient extraction of those deposits, and (e) reducing the incidence of loss of life and damage to property and the environment in localities subject to flooding and to enable uses and developments consistent with floodplain management practices. The evidence 17 The applicant provided expert evidence from: o Dr David Robertson, ecologist, o Mr John Travers, ecologist, o Mr Stephen Cooper, acoustical engineer, o Mr Ronald Brown, traffic engineer, o Mr Bob Staniland, civil engineer, o Mr Brian Wright, soil conservationist, and o Mr Greg Smith, town planner. 18 The applicant provided lay evidence from Dr Richard Cardew, a member of the Historic Sports Racing Club of Australia. He stated that the proposed development needed to be considered as a regionally significant development; there being only four motor racing tracks remaining in New South Wales. He questioned whether the matters required to be protected by the council are so important that they should be protected at all costs and that the development was likely to provide greater protection of flora and fauna than if the site remains undeveloped.

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36 Dr Smith states that there are 59 records of the brush-tailed phascogale in the local government area and most of these are from separate local populations isolated from the site. There are only nine recordings in the local area, two of which occur on the site. He notes that no evidence has been provided to support claims that large areas of secure habitat are located nearby and in his opinion the evidence indicates nearby habitats are limited and insecure. The nine recordings in the local population area occur in private or forestry tenures where they are at risk from cumulative habitat clearing as well as disturbance by forestry, quarrying and other human activities. Dr Smith notes that the home range requirement of a single individual brush-tailed phascogale is around 50 ha. 37 In Dr Smith's opinion it must be concluded that the local population of the brush-tailed phascogale is likely to become extinct on the site under the proposal because insufficient habitat will remain on the site to support a single individual and there is no proof of the existence of continuity of the local population in surrounding areas. Koala - the evidence 38 The koala is listed as Vulnerable under Schedule 2 of the TSC Act. State Environmental Policy No 44- Koala Habitat Protection is relevant, as is Port Stephens Council Comprehensive Koala Plan of Management (the Koala Plan). The site is identified as "Supplementary Koala Habitat" in Figure 1 of the Koala Plan. Relevantly, the Performance Criteria for non-agricultural development applications (the Koala Plan, Part 2, cl 5.4) states that the proposed development must: o maximise retention and minimise the degradation of native vegetation (cl 5.4(b)), o minimise the removal of any individuals of preferred koala feed trees (cl 5.4(c)), o make provision, where appropriate, for restoration or rehabilitation of the areas identified as koala habitat (cl 5.4(d)), o make provision for long-term management and protection of koala habitat (cl 5.4(e)), and o not compromise the potential for the safe movement of koalas around the site (cl 5.4(f)). 39 Dr Robertson states that koala's are found in the area surrounding the site however abundance in the study area is very low. During the surveys, few scats were found at the site and no koalas have been sighted however, there have been reports of koala sightings on the site from occupants of adjoining businesses. A koala skeleton was recovered from the site during a survey in 2005 and koala scats have been founded during previous surveys in 2004. Koala habitat on the site includes communities that contain Grey Gums and Forest Red Gums. Approximately 24 ha of the 64 ha of potential habitat will be cleared leaving an area of 41 ha of potential koala habitat remaining.

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62 Thirdly, the use of offsets to compensate for the loss of habitat was not seriously addressed in the SIS, despite this being a requirement of the Director-General of the Department of Environment and Conservation (Section 7.1.2) or by Dr Robertson and Mr Travers in their evidence. The significant loss of habitat clearly triggers the need for the serious consideration of compensatory planting. I do not accept the position adopted by Mr Travers that this can be done at a later time as the Director-General's requirements clearly specify that there is an obligation to identify compensatory planting in the preparation of the SIS. 63 The issue of compensatory planting for the loss of some EEC and some corridor vegetation was addressed by Preston CJ in Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173. In this case, an area of 73.24 ha was offered as an offset for lost vegetation. This offset area was in the order of 20 times the area of vegetation lost. The article by P Gibbons and D B Lindenmayer, "Offsets for land clearing: No net loss or the tail wagging the dog?" (2007) 8(1) Ecological Management and Restoration 26, was the basis for determining whether the proposed compensatory planting was adequate in the circumstances of that case. The Gibbons and Lindenmayer article accepts that offsetting is a useful policy instrument, however it must be on a "no net loss" approach. Offsets will only contribute to no net loss if a number of parameters are satisfied. Land clearing with offsets outside the identified parameters would be inconsistent with a "no net loss" approach. The parameters are identified as: (a) restoration of the values lost from clearing is feasible or the vegetation proposed for clearing is unlikely to persist, (b) clearing the vegetation does not constitute an immediate risk to a species, population or ecological process, (c) there is adaptive management of the offsets, (d) offsets provide values for periods commensurate with impacts from clearing, and (e) there is adequate compliance . 64 A cursory assessment of the amended proposed against the parameters in this article would find the proposed development clearly contrary to a "no net loss" approach.

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82 Mr Brown and Mr Rogers state that a TMP shall be submitted for the approval of the council and the RTA prior to the operation of any consent through a deferred commencement condition (1G). The deferred commencement condition requires the TMP to address: ( a) The range of different events (i.e. Drag Racing, Circuit Racing, Speedway etc) occurring at the site the Traffic Plan seeks to manage; (b) Identify management strategies to be introduced to protect the travelling public from risks arising from the traffic generation of the different events proposed to occur at the site; (c) Identify physical works required to be undertaken within the site, and within the local road network necessary to implement this management plan (i.e. barricades, median strips, pedestrian blisters, line marking, signage, intersection works, boom gates, etc); ( d) Identify the implementation measures required for the proper operation of the Management Plan including the number and type of personnel required (i.e. Traffic Marshalls, Rangers, Police Officers) and their roles and responsibilities incorporated into the Traffic Plan; (e) Identify the direct impacts of the development on the local road network and recommend measures to ensure that road network is not degraded from the affected by such impacts; (f) Identify the indirect impacts of the development on the local road network and recommend measures to protect the height or road network affected by such impacts; (g) Identify how the number of vehicles associated with events at the proposed development and at the adjacent Barleigh Ranch would not exceed 1400 vehicles. 83 The following conditions are proposed by Mr Brown and Mr Rogers in relation to spectator limits: 15. No more than 1400 vehicles shall be permitted on the site during any major event. For the purposes of this condition and conditions 16 and 17, a "major event" is an event where two or more of the drag strip, circuit course, speedway or hill climb facilities are used at any one time or during any one meeting.

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93 In finding that the intersection is not likely to operate in an acceptable manner, I have also taken into consideration the level of regulation necessary to address the potential impact on the Italia Road and the Pacific Highway intersection. For the proposal to operate in an acceptable manner, the applicant will be required to: o limit the use of the different facilities on the site, o limit the number of entry tickets to not exceed maximum number of patrons, o turn patrons away who do not have tickets, o turn patrons away who do not arrive by vehicle, o provide staff to direct at least 14% of vehicles to turn left into Italia Road, o limit vehicles leaving the site to avoid excessive queuing on public roads. o upgrade local intersections, o identify management strategies to protect the travelling public from risks arising from the proposed development, o identify physical works within the local road network, o identify direct and indirect impacts on the local road network and measures to ensure that the roadwork is not degraded by the proposed development, and o agree with the operators of Barleigh Ranch on concurrent use to ensure that there would be no more than 1400 vehicles from both venues. 94 In accepting that it may be physically possible to provide the staff to direct patrons, carry out improvements on the local road network and obtain agreement on limitations on the use of other nearby developments, there must be a point where the amount of matters necessary to make a development acceptable becomes so extensive, complex and requiring such high levels of control that they become issues in themselves. In this case, I accept that this point has been reached. The need for such extensive requirements highlights the unsuitability of the site for the size and scale of the proposed development. This becomes a critical matter when a failure to strictly comply with one or more of the requirements could create a potentially dangerous situation at the Italia Road and Pacific Highway intersection.

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98 A fundamental consideration in the assessment of the traffic impacts by Mr Brown and Mr Rogers is the operation at Barleigh Ranch. This property was visited on the site view. It is used as a motorcycle race facility with a number of different tracks and configurations. Surveys undertaken by Mr Brown at Barleigh Ranch indicated events at this site attracted 1400 vehicles on 1 August 2004, 894 vehicles on 28 May 2006 and 770 vehicles on the 16 July 2006. No details were provided on the days and times it operates or the conditions of any consent. The evidence on the operation of Barleigh Ranch was limited to a comment that its operation was generally uncontrolled by any conditions of development consent. 99 Taking into consideration the lack of evidence available on the operation of Barleigh Ranch, the potential levels of traffic generated by Barleigh Ranch, the absence of any form of agreement that Barleigh Ranch would participate in programming of events to ensure that the concurrent use of both operations does not exceed 1400 vehicles and importantly the fundamental and undisputed need to coordinate traffic levels at Barleigh Ranch and events at the site, I do not accept that proposed condition 17 (or requirement (g) in the TMP) can be reasonably imposed. The ability of the applicant to comply with this requirement is uncertain at best. Satisfaction of this requirement relies on the willingness of a person not associated with the proposed development to participate in the joint programming of events at the two venues. In the absence of any evidence to suggest there is a possibility or a likelihood that an agreement can reached; it would be inappropriate to impose such a requirement. This leaves open the real possibility that the development cannot operate in a safe manner. Without an agreement, the proposed development will be significantly different in terms of traffic and safety impacts from the development that relied on limiting vehicle movements at the Italia Road and Pacific Highway intersection.

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Is the Management Plan to be enforced as a condition of consent? 111 Yes. 7. Does the Management Plan contain complaint management procedures? 112 No but additional requirements could be added to the TMP. 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 113 No but additional requirements could be added to the TMP. Erosion, sediment control and stormwater management The evidence 114 The significant difference between Mr Staniland and Mr Wright and Mr Jamieson and Mr Serberry was the adequacy of the information provided by the applicant. Mr Staniland provided a preliminary design for stormwater management. He identifies the key design principles as of this preliminary design as: o sub-catchments to be formed to isolate and separate clean and contaminated areas for appropriate treatment of stormwater run-off o facilities to be constructed to collect and convey stormwater run-off from isolated sub catchments, o table drains to catch run-off from the racetracks, o treatment of collected stormwater run-off through settlement dams, gross pollutant traps and hydrocarbon separators, o disturbance to natural vegetated areas to be minimised with some areas revegetated and rehabilitated, o stormwater detention will not be required because of the receiving facility of low-lying areas at Grahamstown Dam, and o a Management Plan is to be provided for the operation and maintenance of stormwater management facilities. 115 Mr Staniland notes that the erosion and sediment controls are the subject of a specific design. Familiarity with the usual engineering practice and approximate calculations are sufficient, in his opinion, to confirm the adequacy of the proposed facilities. As soils on the site have been identified as erodable colluvial soils and not dispersive soils, then Mr Staniland states that sediment can be addressed through appropriately sized sediment retention basins with flocculation. Site soils will not be exposed as covering pavement layers will be employed in trafficked areas, such as of access roads and car parking and other areas will be topsoiled and vegetated.

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123 I have given little weight to the General Terms of Approval issued by the then Department of Natural Resources on 26 May 2003. These are as the name implies, general in nature and do not adequately address the particular characteristics of the site and its context. 124 On the basis of the concerns raised by Mr Jamieson and Mr Serberry, I accept that this issue cannot properly be addressed through operational conditions or deferred conditions of consent. Zone objectives 125 It was suggested by Mr Smith that as a racetrack is a permissible use within the zone then it should be seen as a legitimate rural use and therefore there is a presumption that it is appropriate for the site. While this argument is not without merit, up to a point, the weight to be given to a permissible use is addressed in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (12 August 2004) where (at par 117) it states: 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 126 I do not accept the proposition that because a race track is a permissible use within the zone then this somehow suggests that the proposed development should be given some greater entitlement to an approval. To adopt such a stance effectively ignores the words "in some form" in BGP Properties. It may be that a race track is suitable for the site but it does not follow that all race tracks are suitable. It is clearly a question of fact and degree that is appropriately considered through the zone objectives in cl 10(2) and the wider considerations in s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act).

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Judgment (95 paragraphs)

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Cases Cited (5)