Nash v Minister Administering the Environmental Planning and Assessment Act 1979

Land and Environment Court (NSW)|2007-10-25

CITATION : Nash v Minister Administering the Environmental Planning and Assessment Act 1979 [2007] NSWLEC 624

APPLICANT K R Nash & Associates Pty Limited PARTIES : RESPONDENT Minister Administering the Environmental Planning and Assessment Act 1979

KEY ISSUES: Development Application :- subdivision and erection of a range of dwellings and ancillary facilities for tourist use - impact on endangered ecological community - dwelling design - conditions of approval

DATES OF HEARING: 7, 8/05/07, 10/08/07, 30/08/07, 26/09/07, 29/09/07, Written submissions 18/10/07

APPLICANT Mr N Hemmings QC SOLICITORS Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Department of Planning

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10530 of 2006 K R Nash & Associates Pty Limited v Minister Administering the Environmental Planning and Assessment Act 1979

JUDGMENT 1 COMMISSIONERS: This is an appeal against the refusal by the Minister for Planning Administering the Environmental Planning and Assessment Act (the respondent) of DA249/10/2004 for the subdivision and erection of a range of dwellings and ancillary facilities for tourist use at Lot 41 and 42 DP107019 Boomerang Drive, Pacific Palms (the site).

2 The hearing commenced on site on 7 May 2007 and later at Forster Court on 8 May 2007 in addition to further days on 10 August 2007 and 30 August 2007. Acting Commissioner Goldney was in attendance on 7 May 2007 and the majority of 8 May 2007. The site 3 The site is irregular in shape with a combined frontage to Boomerang Drive of approximately 810 m, a rear boundary of approximately 681 m, and a depth of between 1,000 m on the eastern boundary and 1,177 m on the western boundary. The site has an area of 82.06 ha.

4 The site consists of two distinct topographic areas with the southern portion of the site comprising steep topography with forested slopes, while the northern portion located along Boomerang Drive frontage is more gently sloping. The site contains at least two watercourses that originate from the steeper topography in the southern area of the site and flow under Boomerang Drive, where they flow out to Charlotte Bay and Wallis Lake. There is no development proposed in the southern portion of the site. 5 The site is heavily vegetated with a variety of vegetation communities, including grey gums, flooded gums and various other species. Part of the site contains the endangered ecological community River-flat eucalypt forest on coastal floodplains of the NSW Coast, Sydney Basin and South East Corner bioregions (the EEC). A wetland listed under State Environment Planning Policy 14 - Coastal Wetlands, is located within 100 m of the site. The site currently consists of native vegetation and does not contain any improvements. A dam is located in the northeast corner of the site, originating from a previous use of the site.

6 The site is located on the southern side of Boomerang Drive and is located within an area characterised by largely vegetated areas with small pockets of development, with the main residential and commercial areas confined to the coastal strip along Blueys and Boomerang Beaches. 7 Located opposite the site on the northern side of Boomerang Drive is the Oasis Caravan Park that consists of approximately 150 sites, while to the east also along Boomerang Drive is Blueys Retreat that consists of approximately 65 self-contained units. An adjoining development to the northwest consists of a large allotment with a detached residential dwelling. The proposal 8 The proposed development has been amended on a number of occasions. The proposal before the Court at the commencement of the hearing (Issue G) provides for: (1) construction of 72 dwellings for tourist use, comprising a variety of building types (2) construction of a reception (3) construction of a gym (4) construction of an internal roadwork (5) retention of existing dams and creeks with a riparian zone (6) provision of an asset protection zone comprising an inner and outer protection zone along the eastern, southern and western boundaries of the development and (7) on-site stormwater detention. Relevant planning controls 9 The site is zoned No. 1(c) (Future Urban Investigation Zone) under Great Lakes Local Environmental Plan 1996. The proposed use is permissible in this zone, being defined as a tourist facility.

10 The development application is identified as Significant coastal development pursuant to Pt 3 of State Environmental Planning Policy No. 71 - Coastal Development (SEPP 71) as the proposal involves "tourist facilities".

11 State Environmental Planning Policy No.44 - Koala Habitat Protection and Hunter Regional Environmental Plan 1989 also apply. 12 The Pacific Palms Local Environmental Study 2004 (the LES) has been prepared by the council and was adopted on 8 June 2004. The LES covers the site and aims to assist in the preparation of planning for the Pacific Palms area. 13 Draft Local Environmental Plan - Amendment 13 (DLEP 13) applies. On 12 October 2005, the council resolved to exhibit DLEP 13 for the Pacific Palms area. DLEP 13 is a two-stage rezoning process, the second stage of which (and affecting the site) was initially deferred but was placed on exhibition from 8 August 2007 to 2 September 2007. Relevantly, DPEP 13 seeks to implement the principal findings and strategic recommendations of the LES.

14 DLEP 13 proposes a new zone, being 7(a)(1) Environmental Protection Zone to reflect one of the recommendations of the LES. The 7(a)(1) Environmental Protection Zone is proposed to apply to the majority of the site with a small area of land proposed to be zoned 2(a) Low Density Residential along the Boomerang Drive frontage. The 7(a)(1) zone has a broad range of objectives to address matters such as biodiversity, critical habitat, fauna corridors, and essential links with the study area. 15 The proposal is also integrated development for the purposes of s 91 of the Environment Planning and Assessment Act 1979 as a Bushfire Safety Authority is required pursuant to 100B of the Rural Fire Services Act 1997 in respect of bushfire safety for a special fire protection purpose.

16 A Pt 3 Permit under the Rivers and Foreshore Improvement Act 1948 is required for excavation with 40 m of a watercourse, and a s 138 consent is required pursuant to the Road Act 1993 from the council. The issues 17 The respondent filed a Statement of Issues containing fifteen issues and a number of sub-issues. Following the submission of additional conditions and further amended plans, access (Issue 6), bushfire impact (Issue 8), the riparian zone (Issue 9), the dam (Issue 10), subdivision (Issue 11), infrastructure (Issue 12), amenity and appropriateness of the design (Issue 13) internal streetscape (Issue 14), and adequacy of plans (Issue 15) were not pressed or deleted by the Minister. The remaining issues can be grouped into two principal areas, being the ecological impacts (Issues 1, 2 and 3) and visual impact (Issues 4 and 5). The evidence 18 The parties agreed to the appointment of Dr Andrew Smith as the Court-appointed ecological expert. The respondent provided additional expert evidence from Ms Kerrie Gordon on town planning issues, Mr Matthew Bell on ecological issues, Mr Daniel Copeland from the Rural Fire Service on bushfire issues and Mr Glen Handford on s 94 issues.

19 The applicant provided additional expert evidence from Mr Kerry Nash on town planning issues, Dr David Robertson on ecological issues, Mr John Travers on bushfire issues and Mr Bray, the project architect.

20 Evidence was taken on site from Mr Dave Ellis, the operator of the Oasis Caravan Park opposite the site. Mr Ellis supported the proposed development. 21 Dr Wells an environmental scientist provided evidence on site and also written submissions during the course of the hearing at Forster. Dr Wells raised concerns over the adequacy of the LES prepared as part of the DLEP 13 process. Having heard Dr Wells' comments and read his submission, we are satisfied that his concerns do not impinge on the Court's consideration of the development application. His concerns over the koala assessment in the LES relate primarily to the content of the LES rather than the merits of the development application.

22 Mr Reginald Wiltshire provided oral evidence on behalf of the owner of the property to the east of the site. Mr Wiltshire's concerns largely centre on the zoning under DLEP 13 rather than the merits of the development application.

The experts' conference 23 Following the site view and the tendering of the exhibits, the parties and their experts continued their discussion on the remaining issues. On the morning of the second day of the hearing a joint report was tendered from the applicant's and respondent's experts (Exhibit 23). This report concluded that the development of the site was generally satisfactory, subject to amendments that included: o the provision of a central wildlife corridor that created two separate development precincts, o the modification of an existing road to provide pedestrian access, o the adjustment of some proposed access roads, o an additional vehicle access point to Boomerang Drive, o realignment and adjustment in width of the Asset Protection Zone (APZ), and o a vegetation management plan to be prepared for the vegetated area of the development. 24 In addition to the written statement, a freehand sketch (the sketch) was provided and identified matters such as the areas for development, the APZ and new road locations.

25 Notwithstanding the general agreement in Exhibit 23, a number of matters required further consideration and determination by the Court. These were:

Land to be dedicated to the National Parks Estate 26 Paragraph 9 of the joint report provided that the remainder of the site (all but the development precincts), the APZ and the 10 m landscape buffer were to be dedicated to the National Parks Estate.

27 The applicant proposed that this area be extended to an area (including the existing dam) bounded by a straight line between a point 300 m along the eastern boundary, a point 400 m from the western boundary and Boomerang Drive

28 On this particular issue, Dr Smith stated that he preferred the requirements in par 9 because it provided greater ecological certainty. Mr Robertson did not raise any serious concern with the extension of the area proposed by the applicant and stated that discussions by the experts had considered this possibility. Mr Nash supported the additional area and was responsible for the delineation of the area. He stated that the area was an attraction for people using the accommodation and also provided access to the existing dam and the natural vegetation. The proposed line is a convenient means of distinguishing the development site from the area proposed to be dedicated as public open space. 29 Notwithstanding the departure from the agreed position by the experts, we accept that the additional area to be contained within the site of the development is acceptable, providing it forms part of the vegetation management plan (VMP) and is maintained in an appropriate manner. Particularly, any paths should be minimised and their location subject to an inspection by a qualified ecologist to minimise impact on any ecological community or threatened species. Tree and vegetation removal should be avoided where possible and no fencing should be provided with the boundary to the area proposed to be dedicated as public open space.

Privacy screens 30 Condition (u) required privacy screens to be provided to the southern edge of balconies where they are within 9 m of another balcony. We are satisfied that the condition should be deleted however a further assessment should be undertaken as part of the consideration of the amended plans and where it can be established that privacy is an issue, screens should be placed on the balconies. We, however do not accept that a general condition for screening is appropriate.

31 We accept Mr Nash's general comments that the need to screen balconies in a tourist development raises different issues to that of a residential flat building or similar, and that greater consideration should be given to the deletion of the balconies or an amended design rather than the placement of screens on balconies. Findings on joint report from the experts 32 We reviewed the joint report from the experts and are satisfied that the remaining issues of ecological impact and visual impact are satisfactorily addressed through the amendments agreed in the report of the joint experts and the comments contained in this judgment. Consequently, the proceedings on 8 May 2007 were adjourned and the following Directions were made. (1) By 22 May 2007, the applicant is to file and serve copies of amended plans, being architectural, landscaping, stormwater and road design, and final vegetation management plan in accordance with the joint conference of Smith, Robertson, Bell, Gordon, Copeland and Travers. (2) The respondent is to file and serve draft conditions by 6 June 2007. (3) Leave is granted to restore the matter on 48 hours notice if there is any dispute over conditions. (4) If leave is not sought in accordance with Direction (3) by 8 June 2007, Orders will be issued in chambers after this date. Post adjournment 33 The Directions were later amended to reflect the preliminary findings handed down on 8 May 2007 but the times for the provision of amended plans and conditions, leave to restore the matter and issuing of Final Orders was largely unchanged.

34 The Directions were varied on a number of occasions and by letter dated 29 June 2007 the respondent sought to have the matter restored in accordance with the Courts Directions following the serving of the amended plans. The matter was heard on 10 and 30 August 2007. The amended plans 35 The amended plans were tendered and became Exhibit Q. The disagreement between the parties was based on the differences between Exhibit 23 (the agreement reached in the joint report tendered from the applicant's and respondent's experts) and Exhibit Q. Helpfully, the parties produced a composite plan (Exhibit P) that identified the new layout proposed in Exhibit Q and the parameters identified in the sketch from Exhibit 23 (see Attachment 1). The main differences are addressed in the draft conditions. The conditions in dispute 36 The conditions identified in dispute by the respondent are:

Conditions A9(2), C1(1) C1(2) and C1(3) 37 These conditions address the extension of the western precinct in a southerly direction and westerly direction. The amended plans provide for 7 dwellings and a perimeter access road within the area shown as an APZ on the sketch. Dr Smith opposed the extension of the development in a southerly direction on the basis that the sketch was the result of the fundamental agreement of the experts that any potential impact on the existing vegetation should be minimised. He saw no reason why the dwellings in this location could not be clustered in a denser pattern with a subsequent retention of additional natural vegetation. Mr Bell supported these conclusions.

38 Dr Robertson stated that the vegetation in this area was dry grassy forest and not the EEC. In Dr Robertson's opinion, the proposed layout allows the retention of some trees within the built form of the dwellings and provides a natural landscape element to this area. Mr Nash supports this approach. 39 Mr Bray stated that the area in question allows for a range of dwellings and additionally creates building within a landscape setting. He further stated that the road location is designed to follow the contours of land and satisfy necessary engineering requirements for the road construction. In his opinion the location of the road is consistent with par 2a of the written statement of Exhibit 23. This states: 2a. Extend the development boundary to the south by maximum of 40 m (at the centre of the extension area) at roughly the centre of the combined western and central precincts. 40 In practical terms, the sketch cannot be seen as a definitive document. It must be seen as a document produced in good faith by experts with different objectives in an endeavour to find a suitable solution to a range of different but related issues. I am satisfied that Exhibit Q is a generally acceptable response to the attempt by the experts to find an overall solution.

41 There would appear to be some inconsistency in Exhibit 23 between the sketch and par 2a in the southerly extension of the western precinct. There is some merit in the positions of both Dr Smith and Dr Robertson in that it is desirable to minimise any impact on the natural vegetation however any impacts are likely to be on vegetation that does not form part of the EEC.

42 In my view, this can be satisfactorily addressed through an adjustment to the alignment of the most southerly road so that the road is generally equidistant between the APZ shown on the sketch. This will increase the natural vegetation retention and at the same time generally satisfy the aspects of the development seen as being important by Mr Nash and Mr Bray. I am not satisfied that this change will impose any unacceptable engineering constraints on the road construction or intersection designs. It will also not necessarily reduce the dwelling yield although the area available around the dwellings in this location will be reduced but not to the extent that a range of dwelling environments will not be available throughout the development.

43 Incoming to this conclusion I have taken into consideration the amount of natural vegetation to be retained, maintained within the development site and dedicated as public open space as part of the development proposal.

44 The amended plans provide for the most westerly access road to be located within the APZ on the sketch. The effect is to move the road some 8 metres in a westerly direction thereby encroaching further into natural vegetation. Dr Robertson the opposed this change on the basis that further natural vegetation would be lost and would be inconsistent with his approach of minimising disturbance.

45 For the reasons mentioned in the previous paragraphs I do not accept that strict reliance can be placed on the sketch. I am satisfied that the differences between Exhibit 23 and the sketch are relatively minor and have little additional impact on the existing natural vegetation. As with the southerly extension I have also taken into account the amount of natural vegetation to be retained, maintained within the development site and dedicated as public open space as part of the development proposal. 46 Conditions A9(2), C1(1) C1(2) and C1(3) can be amended to reflect this change to the road location.

Conditions A2 (1) and (2) 47 Condition A2 (1) requires the applicant to obtain development consent or a property vegetation management plan pursuant to the Native Vegetation Act 2003 for the clearing of native vegetation on the site. Condition A2 (2) provides that the applicant will not be relieved of compliance with the approval under the Native Vegetation Act 2003 or any consent granted by the Court if there are any inconsistencies. In the event of any inconsistencies the applicant is required to seek modification of the relevant approval to achieve consistency.

48 Mr Hemmings QC, for the applicant, submits that if the words "if required" are inserted after the words "The applicant must obtain" in Condition A2 (1) and if the words "if approval is required to pursuant to the Native Vegetation Act 2003" are inserted after the words "The applicant will not be relieved" in Condition A2 (2) then the condition is acceptable. Mr Hemmings submits that the Native Vegetation Act 2003 provides a number of alternates, which are open to the applicant to pursue. The choice should be left to the respondent.

49 Ms Irish, for respondent, generally agreed with the amendments proposed by the applicant but subject to the additional requirements that the applicant must obtain the Director's satisfaction in writing if the applicant believes they are not required to obtain development consent or a property vegetation management plan pursuant to the Native Vegetation Act 2003. 50 On conditions A2 (1) and (2) I accept Mr Hemmings submissions. The amendments proposed by the applicant do not remove any obligations under the Native Vegetation Act 2003 but as I understand, only provide the flexibility to address the requirements in a different way. Even though the alternatives that are available to the applicant were not explained to the Court I am uncertain why the Director's concurrence needs to be obtained unless it is specifically required under the Native Vegetation Act 2003. The provisions of the Native Vegetation Act 2003 should dictate the obligations of the applicant and the applicants proposed amendments do not diminish these obligations.

Condition A3 (1)(a) and (b) 51 Condition A3 provides for the transfer of the land not set aside for the development to the Minister for Climate Change, Environment and Water. The applicant did not oppose this transfer although there was disagreement over the terms of the transfer.

52 Condition A3 (1)(a) provides that the applicant must, at its own costs, seek approval of a plan of subdivision and register the plan of subdivision prior to the transfer of land.

53 The applicant requires amendment of the condition to provide only for the dedication to the Minister for Climate Change, Environment and Water of land identified as Lot B in Plan A39 (the Conservation Reserve). The respondent requires o the subdivision to be at the cost of the applicant, o a description of the legal process involved with the dedication of the land as opposed to transfer, and o an agreement that the site is to be dedicated free of all encumbrances. 54 The applicant opposes these requirements.

55 Condition A3 (1)(b) requires that prior to the to the transfer of the Conservation Reserve, the applicant must establish an ongoing funding arrangement to the satisfaction of the Minister for Climate Change, Environment and Water that provides funding for the implementation, maintenance and enhancement of works on the Conservation Reserve. The applicant requires the deletion of this condition as it is unreasonable.

56 In relation to condition A3 (1)(a) and (b), I generally accept the submissions of the applicant with the exception of the need to prepare the subdivision plan. In my view, this is appropriately undertaken by the applicant. The dedication of some 56 hectares of land, at no cost to the respondent, is an important consideration in determining the ongoing level of involvement by the applicant after the preparation of the subdivision. I am not satisfied that it is reasonable for the applicant to be responsible for any ongoing funding arrangement for the implementation, maintenance and enhancement of works on the dedicated land. It would seem reasonable that once the land passes into the ownership of the Minister for Climate Change, Environment and Water (and in the absence of any compelling reasons to the contrary) the future maintenance and upkeep should rest with the owner of land. For the same reason, I accept that the applicant should not retain any access over this land once the ownership has changed. I presume the reference to the respondents requirements that the land "is to be dedicated free of all encumbrances" is a reference to the existing right-of-way that leads to the southern part of the site. Condition A4 57 Condition A4 requires the creation of a s 88E Restriction over that part of the site not to be dedicated as public open space and not containing the proposed development. It is referred to as the Private Conservation Area. The 88E Restriction will, amongst other things, prohibit development within this area and provide the council with powers for the purposes of inspections, remedy any breaches, recover expenses and restrict activities in the Private Conservation Area. The applicant opposes this condition as the control of this area is managed by the VMP.

58 I accept the general proposition that the creation of a s 88E Restriction over the Private Conservation Area is appropriate considering the existence of the EEC however the s 88E Restriction should be generally restricted to those matters contained within the VMP. I am not satisfied that it should contain the extensive requirements proposed by Condition A4. As compliance with the VMP is required by the conditions of approval I see no necessity to repeat or supplement provisions that are generally available elsewhere. If required, adequate provisions are available to access private property. Adequate provisions are also available through the Court to address any breach of conditions and if necessary recover costs. Further, any restrictions on activities within the Private Conservation Area should be contained within the VMP. Condition A5 59 Condition A5 requires a Plan of Management for the Private Conservation Area for the purposes of restoring, protecting, conserving and managing the land. The Plan shall be to the satisfaction of the Department of Planning, the Department of Environment and Climate Change and the council. Condition A5 also contains requirements for entry. The applicant opposes this condition as the management of this area is controlled by the VMP.

60 I accept the applicant's submission that the matters sought to be addressed by the Plan of Management for the Private Conservation Area can be adequately addressed through the VMP. The need for access is addressed in Condition A4. Condition A6 61 Condition A6 requires the VMP to be amended in accordance with the Department's letter dated 25 June 2007. The applicant offered an alternate condition that provided for the applicant to prepare and submit to the satisfaction of the Department of Planning, the Department of Environment and Climate Change and for the approval of the Department of Planning, a VMP for the purposes of maintaining the existing state vegetation, protecting and conserving/managing for natural heritage and biodiversity of that land as the minimum outcome of compliance with the VMP. 62 I accept the alternate condition proposed by the applicant. The outcomes to be generated by the applicant's alternate condition are consistent with the findings for Condition A4 and A5.

Condition A9(1) 63 Condition A9(1) requires the footprint of dwellings for the Type 9b dwellings, the garages for dwellings 1-7, 22-26 and 48-50 to be redesigned so as to provide accommodation space in place of the garages, and relocated garages either attached to the dwellings or detached. The basis for the change is found in par 8 of Exhibit 23 where it states that buildings are to be designed to be as ground hugging as possible and the driveways and building footprints are to be minimised.

64 The condition is opposed by the applicant who maintains that the condition will require parking on the roof of habitable space and will create problems with the waterproofing, vibration and the perception of living under a car park. Overall this approach was not seen as good design practice.

65 In accepting that par 8 of Exhibit 23 is a laudable objective, I am not satisfied that the building form resulting from this condition is necessarily a desirable architectural outcome for the site. I note that there are no height standards that apply to the site and while this should not be seen as an opportunity to provide buildings that are unacceptably high, I do not accept that this is the case with the proposed development. My understanding is that there were no concerns expressed over the design of the individual design of the dwellings only that some had excessive bulk and height and that the dwellings could be redesigned to minimise this bulk and height. 66 I am also satisfied that the access driveways are not unacceptably long despite the concerns expressed by Ms Gordon providing that the materials used in their construction are suitably sensitive to the natural environment of the area.

67 I agree with the applicant that the designs are appropriate, given the topography of the site. The architectural form for dwellings 1-7, 22-26 and 48-50 if redesigned, would be inconsistent with the remaining development. In my view, the amended form would have a greater impact on the character and streetscape than the proposed design even though there may be a small reduction in bulk and scale.

Conditions C1(4)(a),(b),(c) and (f) 68 These conditions require amendments to proposed dwellings 19, 10 and 20 to reduce the bulk and scale. The applicant opposes the changes as the amendments suggested by the respondent create technical difficulties with access in relation to dwellings 19 and10. Based on the proposed floor levels Dwelling 20 will not be as visually prominent as a Type 9b dwelling. I accept the conclusions of the applicant in relation to these conditions.

Condition C1(5) 69 This condition requires the APZ to be located as close as possible to the facades of the proposed dwellings. The applicant opposes this condition as the position of the APZ was agreed to in the joint conference and in conjunction with the Rural Fire Service.

70 I agree with the general intent of this condition that the APZ to be located as close as possible to the facades of the proposed dwellings. However a reference to specific dwellings has been largely overtaken by the need to amend the location of the southerly road and the likely amendments to the dwellings in this part of the proposed development. Condition C2 71 This condition requires the habitat trees shown on the Site Masterplan dated 24 April 2007 to be retained in situ unless approved for removal by the landscape plan. The applicant accepts this condition provided that the Site Masterplan dated 31 May 2007 is inserted in the condition. The applicant notes that Dr Smith has agreed to the removal of habitat trees 7 and 8.

72 I accept the applicant's amendment to this condition.

Condition C8 73 This condition requires, prior to the issue of a Construction Certificate and the commencement of construction, a Hollow Tree Management Plan. The condition contains requirements for the preparation of the Plan.

74 The applicant opposed this condition, as it was inconsistent with the agreement between Dr Smith and Dr Robertson that stated that the condition should be modified and incorporated into the VMP. While not accepted by Mr Bell I accept that this is an appropriate means of dealing with this issue. Condition C9 75 This condition requires the production of a Vegetation Clearance Protocol/ Method Statement. The requirements of this condition were accepted by the applicant subject to an amendment that provided for the document to be reviewed and endorsed by the Director of the Department of Planning or his delegate. The respondent agreed to the amendment. Conditions C 22 and 23 76 These conditions refer to contributions under s 94. The areas of dispute in condition C 22 relate to items for major roads ($118,641.18), s 94 administration ($8,314.42), fire fighting ($74,260.68) and surf lifesaving ($16,479.69). Condition C 23 relates to bonds against damage to council assets by activities/works associated with construction of the proposed development ($100,000).

77 Mr Nash states that in relation to the major roads contribution, tourist accommodation is not specifically defined however he considers that the relevant contribution rate would be 3 trips per unit based on the council's s 94 plan for "motel unit". This equates to a contribution of $73,936.80. In relation to the s 94 administration and fire fighting, Mr Nash notes that "non-residential development" does not attract a levy and as such no contribution is applicable. Similarly, the surf lifesaving contribution is in relation to residential development and not a tourist facility so no contribution is applicable. Mr Nash maintains that a bond of $10,000 against damage to council assets by activities/works is appropriate. 78 Mr Handford maintains that the contribution for major roads is still appropriate however he would accept a 50% reduction to the residential contribution rates as an appropriate rate for a tourist use for the other contributions in issue. Mr Handford states that a bond of $100,000 against damage to council assets by activities/works associated with the development is appropriate because of the roadworks required on council controlled Boomerang Drive.

79 On the question of the contribution for major roads, I accept the evidence of Mr Nash. It is a reasonable assumption that the tourist use of the site would have traffic generation more akin to a motel use rather than a residential development. I do not accept that the "nexus" argument can be sustained for the use of a contribution that applies to residential development.

80 Notwithstanding the concession made by Mr Handford, I am satisfied that the contributions for s 94 administration can be applied to the proposed development. There was no dispute that a s 94 contribution should be applied to the proposed development. The dispute was the extent and level of contribution. On this basis, it would be clearly appropriate for a contribution to be made towards the administration of the fund. 81 I am also satisfied that the contributions towards fire fighting and surf lifesaving should be applied at the level provided by s 94 plan. The need to provide a contribution towards fire fighting is appropriate in this case, considering the location of the development in a bushfire prone area. In my view, this should be the prime consideration rather than whether the development is a residential use or tourist use.

82 Similarly, I am satisfied that the tourist use of the site will provide a potential population that will make use of the beaches and as such an appropriate "nexus" can be established between the contribution and the need to provide goods and facilities associated with surf lifesaving.

83 I also accept the councils bond of $100,000 as an appropriate means of addressing potential damage to council's assets and facilities as part of the development of the site. As two new intersections are proposed to Boomerang Drive, a bond of $10,000 is clearly insufficient for the works proposed and the potential damage. I note the bond proposed by the council is consistent with the adopted council approach for the formulation of bonds in these circumstances.

Condition C32 84 This condition requires kerb and gutter, stormwater drainage, full width pavement including traffic facilities (roundabouts, median islands etc) and paved footpaths along all roads. The difference between the parties is not clear from the joint report on the conditions (Exhibit T) although there appears to be agreement that the two sections of Boomerang Drive required to provide the intersections to access the development needs to be upgraded together with the new internal roads. The roads need to be constructed to the requirements of the council and the roundabouts to the appropriate RTA design standard. I did not understand the condition requires any requirement for the upgrading of the full length of Boomerang Drive.

The evidence of Dr Wells 85 Dr Wells provided further oral evidence, four statutory declarations (Exhibit 38) and further written documentation (part Exhibit 25) on the 30 May 2007. Dr Wells raised similar issues to the issues raised on 7 May 2007 i.e., the adequacy of the LES conducted as part of the DLEP 13 process. His concerns centre on the bona fides of a previous study and specifically a plot (Plot 9) that was used to determine koala activity. While initial arrangements were made to inspect Plot 9 at the time of the site view, the Court subsequently inquired with the legal representatives of the parties, as to the benefits of such an inspection. Having been advised that Plot 9 was outside the area of the proposed development and was not a matter that was seen by the ecological experts as impacting on the proposed development, the Court decided that there was no benefit in inspecting Plot 9, even though some witnesses had already travelled to this location. 86 The further evidence from Dr Wells do not raise any additional issues beyond those raised by Dr Wells on 7 May 2007 as his concerns over the koala assessment in the LES relate primarily to the content of the LES rather than the merits of the development application. Draft Local Environmental Plan - Amendment 13 87 DLEP 13 was on exhibition from 8 August 2007 to 2 September 2007. Its precise form must be uncertain having only been recently exhibited. No evidence was provided on the likely content of the draft plan following the exhibition and after the consideration of any submissions. While the Court is required to take into consideration a draft planning instrument, I am satisfied that DLEP 13 cannot be seen as imminent and certain and as such cannot be given determinative weight in the consideration of the development application. Final Orders 88 The parties agreed the Court should publish its findings on the disputed conditions and allow the parties to prepare the amended conditions to reflect these findings. In adopting this approach, the parties were requested to provide the draft conditions in electronic form and with the ability to amend the conditions at the time the findings were published. Due to the extent of change and the sometimes overlapping nature of the conditions, any conflict or clarification of the conditions required by the Court could be undertaken at this time. This approach will allow Final Orders to be made at the same time as the findings on the disputed conditions. The findings were published on 26 September 2007 and the parties addressed the findings on that day although further submissions on conditions relating to drainage were heard and determined on 29 September 2007. 89 As the final conditions had not been filed, Directions were given to the parties that by 18 October 2007 they were to file the agreed conditions and if there was any disagreement on any conditions, each party was to provide short written submissions on the conditions in dispute. Final orders will be issued in Chambers.

90 Following this Direction, the following conditions remained in dispute:

Condition C10 91 This condition requires the provision of a landscape plan. Condition C10(3) requires the submission of a Certificate of Practical Completion to show that the landscaping work has been carried out in accordance with the approved landscape plan. The applicant submits that the document should only be submitted to the Department of Planning and this is accepted by the respondent. Condition C11 92 This condition requires the outer physical extent of the asset protection zone to be physically located on site. Condition C11(5) provides that the fencing style shall be provided prior to the Department of Planning and council for review and approval. The applicant submits that the document should only be approved by the Department of Planning and this is accepted by the respondent.

Condition C34 93 This condition requires an application for a Public Engineering Works Permit for works on council land. Condition C34(3)(g) requires the widening of the Boomerang Drive from The Lakes Way to the eastern boundary of the development, some 1.068 km, to provide for a 10.1 m carriageway, including line marking (condition C34(3)(h)), signposting (condition C34(3)(i)), adjustment/relocation of any utility services (condition C34(3)(j)), stormwater drainage (condition C34(3)(k)), footpath formation and turfing (condition C34(3)(l)), approval to remove trees from the Boomerang Drive road reserve to facilitate the footpath (condition C34(3)(m)) and the written agreement of the caravan park for any works within the caravan park property associated with driveway and roundabout construction (condition C34(3)(n)). 94 The council requires these conditions as it is the only access to the site and Boomerang Drive must be upgraded to cater for the increased traffic that will be generated by the development. If the conditions are deleted, the road will not meet council standards after the development is carried out. The conditions are supported by the council's Traffic Authority Committee.

95 The applicant submits that conditions C34(3)(g) to (l) should be deleted as the upgrading of the road and associated works are not necessitated by the proposed development. The conditions are wholly unreasonable and not supported by any evidence before the Court. Conditions C34(3)(m) and (n) should also be deleted as vegetation maintenance and removal are controlled by the approved landscaping plan and no works are proposed on the caravan park land. The applicant disputes that the conditions are supported by the council's Traffic Authority Committee.

96 I am satisfied that conditions C34(3)(g) to (l) should be deleted. I do not accept that the substantial upgrading of the road and associated works are necessitated by additional traffic from the proposed development. I have previously found that the tourist use of the site would have traffic generation more akin to a motel use rather than a residential development. I am also unsure of the basis for the respondent's submission that if the conditions are deleted, the road will not meet council standards after the development is carried out. Boomerang Drive serves as the principal access to the urban development at Blueys Beach and Charlotte Head as well as the caravan park opposite the site and Blueys Retreat further to the east. While no traffic figures were provided, I simply do not accept that the traffic generated by the proposed development would warrant the extent of upgrading of Boomerang Drive and associated works proposed by conditions C34(3)(g) to (l) taking into consideration the use of Boomerang Drive to access other developments in the area. On this basis, the imposition of conditions C34(3)(g) to (l) are unreasonable. 97 Conditions C34(3)(m) and C34(5) relate to the formation of a nature strip and construction of a concrete a footpath/cycle way along the Boomerang Drive frontage. The respondent states that the council is willing to consider locating the footpath/cycle way to the opposite side of Boomerang Drive thereby removing any issues associated with vegetation removal and the 2 m high embankment within the nature strip adjoining the site.

98 I accept that the provision of a footpath/cycle way that extends from the eastern boundary to the western boundary is an appropriate requirement for the proposed development. This will allow any person using the most westerly access to use the footpath/cycle way. Condition C34(5) is amended to reflect this requirement.

99 I also accept that the suggestion of the council that it should be located on the opposite side of Boomerang Drive is a sensible and practical approach to the provision of this facility. The topography of the nature strip in front of the site and the reliance by Ms Gordon on retaining existing vegetation along the street frontage clearly supports the council's suggestion. Condition C34(1) and be amended to reflect this requirement. 100 Conditions C34(3)(n) requires the written agreement of the caravan park for any works within the caravan park property associated with driveway and roundabout construction. The applicant maintains that there is no work on the caravan park site however in the absence of any detail design, the words "If required" should be placed at the start of the condition.

Condition C39 101 This condition requires that prior to the issue of a Construction Certificate, the applicant shall submit to the Department and council a report addressing compliance with all relevant conditions. The respondent submits that the Compliance Report should be submitted to the Department of Planning and council whereas the applicant submits that the document should only be submitted to the Department of Planning.

102 As the Department of Planning was the consent authority for the development application, it is appropriate that the Compliance Report be submitted to that authority. Orders 103 The Orders of the Court are: 1) The appeal is upheld. 2) DA249/10/2004 for the subdivision and erection of a range of dwellings and ancillary facilities for tourist use at Lot 41 and 42 DP107019 Boomerang Drive, Pacific Palms is approved subject to the conditions in Annexure A. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

      Dr David Goldney
      Acting Commissioner of the Court

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.

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