Rothwell Boys Pty Ltd v Coffs Harbour Council & Ors

Land and Environment Court (NSW)|2012-03-01|Before: Ms J

Judgment 1This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the Council of consent to Development Application No 1132/10 lodged on 4 May 2010 for the establishment of the Moonee Beach Collector Road from its current alignment constructed to the southern boundary of Lot 6, DP 1140702 to the southern boundary of Lot 1 DP 725785 (the collector road). 2Rothwell Boys Pty Ltd (Rothwell) owns the land immediately to the north of the site of the proposed collector road, being Lots 1 and 2 DP 725785, and has been granted a Project Approval under the former Part 3A of the Act for subdivision of that land into 524 lots (MP 06_0143) (the Glades Estate). The Project Approval, as modified, requires the construction and dedication of the collector road before the issue of any Subdivision Certificate for any of the lots in the approved subdivision. 3The Glades Estate, and the proposed collector road, are located in the Moonee Release Area to the north of Coffs Harbour. The proposed collector road will link the Glades Estate development to Moonee Beach Village, which has access to the Pacific Highway to the west. The proposed collector road crosses Cunninghams Creek, which is a permanent estuarine creek feeding into Moonee Creek, and another, unnamed, watercourse. Cunninghams Creek is between eight and ten metres wide, and is considered moderate (Class 2) fish habitat. The proposed crossing of Cunninghams Creek is approximately 80m east of the current Pacific Highway crossing. The Pacific Highway is presently the subject of significant upgrading roadworks, including construction of a new crossing over Cunninghams Creek upstream of the site. 4The proposed development requires a controlled activity approval under s91 of the Water Management Act 2000 (WMA), and permits under ss 201 and 205 of the Fisheries Management Act 1994 (FMA), and is integrated development as defined in s91 of the Act. Part of the proposed development is situated in the Solitary Islands Marine Park and concurrence of the Marine Parks Authority is required. The process of referral of the application to the relevant agencies and discussion between those agencies and the Council is outlined in the Council's Statement of Facts and Contentions (exhibit 1), and included workshops between the Council, Rothwell, Department of Primary Industries Fisheries, the NSW Office of Water, and the Marine Parks Authority, in August 2010 and May 2011. 5Rothwell commenced the Class 1 appeal against the deemed refusal of the development application on 1 July 2011. On 19 August 2011 the Department of Primary Industries (DPI Fisheries) issued its General Terms of Approval (GTAs) in relation to the permits required under the FMA. On 24 August 2011 the Marine Parks Authority advised it would be prepared to issue consent subject to specified conditions forming part of any development consent. 6On 22 August 2011 the NSW Office of Water advised that it intended to refuse to issue a controlled activity permit under the WMA, and that it would not provide GTAs. The Council refused the development application on 1 September 2011 on the ground that s 91A(4) of the Act applied, and the Council must refuse consent. The Minister Administering the Water Administration Act 2000 was joined as a party to the appeal. 7The collector road is proposed to be constructed over part of three lots, Lot 6 DP 1140702, Lot 6 DP 252223, and Lot 1 DP 1097743, which is land not owned by Rothwell. The third respondent, Mr Roger Barker, owns Lot 6 DP 252223. Rothwell negotiated with all relevant landowners for the construction of the collector road, including a Deed entered into with Mr Barker dated 14 July 2009. The alignment for the proposed collector road has been amended. Mr Barker was joined as a party to the appeal, and an order was made for the determination of a separate question concerning owners consent for the development application. On 9 February 2012 Craig J determined that the Deed between Rothwell and Mr Barker was evidence that the owner of Lot 6 DP 252223 consents to the making of the development application as amended for the purposes of cl 1(i) Schedule 1, Environmental Planning and Assessment Regulation 2000: Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19. At [37] Craig J observed that any grant of development consent has no impact upon proprietary rights, and in particular, if the result of the present appeal is that consent is granted to construction of the collector road, that consent, of itself, will afford no right to Rothwell to enter upon Lot 6 and undertake road construction. At [43] of his judgment, Craig J noted that having answered the separate question in the affirmative, Mr Barker had no further role to play in the litigation, however no order was made as to the constitution of the proceedings. 8Mr Barker did not appear at the hearing of the appeal. By letter dated 28 February 2012 (exhibit 3) Mr Barker's solicitor advised that Mr Barker objects to the merits of the proposal and requested that the Court impose a deferred commencement condition requiring that no work be undertaken on Mr Barker's land until the Council is satisfied that Mr Barker has consented to such work. At the request of the Court, Rothwell's solicitor sought confirmation (exhibit D) that Mr Barker did not wish to take an active part in the hearing of the matter, other than having his objection considered by the Court. Mr Barker's solicitor responded (exhibit 9) confirming Mr Barker's primary position that consent should be refused, on the basis of the location of the proposed road and the narrowness of its alignment, and providing submissions in support of the proposed deferred commencement condition. 9The alignment of the proposed collector road has been amended since that proposed in the development application. The amended alignment of the collector road is shown on Drawing 08070/7B dated 19 January 2012 (exhibit E). The section of the road where the distance between the road and Cunninghams Creek is at its narrowest (referred to in evidence as "the pinchpoint") is at the southern end of the proposed bridge over Cunninghams Creek. The distance from the edge of the batter to Cunninghams Creek for that section of the road is 21 m, and the remainder is 30m or more. The proposed bridge crossing over Cunninhams Creek is raised on piers between chainages 400 and 480 on the southern side of Cunninghams Creek. 10There are two endangered ecological communities (EEC) on the site: Coastal Saltmarsh, and Swamp Sclerophyll Forest on coastal floodplain. The flora and fauna assessment undertaken for the proposal identified that 0.7ha of the existing 0.213ha of the Coastal Saltmarsh community occurring on the site will be modified or removed as part of the proposed development, and that a loss of 0.1051ha of Swamp Sclerophyll Forest had been identified, from communities degraded due to past disturbance and modification.

Issues 11The Council refused consent on the basis that the NSW Office of Water had advised that GTAs would not be submitted and accordingly s 91A(4) of the Act required refusal of the application. The Council contended that if GTAs were submitted conditional consent could be granted. 12It was common ground that the Court has jurisdiction to grant consent. During the course of the hearing the Minister's position was that subject to conditions consent could be granted. The parties disagreed on the wording of several conditions.

Legislation and policies 13Section 91 of the Act identifies as "integrated development" development that, in order for it to be carried out, requires development consent and an approval under, among others, ss 201 and 205 of the FMA and s 91 of the WMA. 14Section 91A of the Act provides: 91A Development that is integrated development (1) This section applies to the determination of a development application for development that is integrated development. (2) Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent. (3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval. (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. (5) If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval: (a) the consent authority may determine the development application, and (b) if the consent authority determines the development application by granting consent: (i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and (ii) an approval granted by the approval body must not be inconsistent with the development consent, and (iii) section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority, despite any other Act or law.(6) If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination. Note. If a dispute arises under this section between a consent authority and an approval body, the dispute may be dealt with under section 121. 15Section 93(1) of the Act provides that an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked. An approval may be granted subject to conditions that are not inconsistent with the development consent: s 93(2). The term "approval body" is defined in s90A to mean a person or body who may grant a consent, licence, permit, permission or any form of authorisation. 16The powers of the Court on appeal are specified in s39 of the Land and Environment Court Act 1979 (the Court Act) and relevantly include: (6A) Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act: (a) the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and (b) the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and (c) the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body. Section 93 of that Act applies to a development consent granted as a result of the appeal. 17In the letter dated 22 August 2011 advising that GTAs would not be provided, the NSW Office of Water stated that it intended to refuse to issue a controlled activity approval under the WMA because on its assessment of the development application the proposal "may exceed the NSW Office of Water's requirements for minimum harm and therefore pose a significant risk to waterfront land and the receiving waters of Cunningham Creek". 18Part 3 of the WMA contains provisions for Approvals, including a controlled activity approval under s91. An approval may not be granted in contravention of the provisions of any relevant management plan: s 95(3). In considering whether or not to grant an approval, the Minister is required to take into account such matters as are prescribed by the regulations, and such other matters as the Minister considers to be relevant: s 96. A controlled activity approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any waterfront land as a consequence of the carrying out of the proposed controlled activity: s 97(4). 19The term "waterfront land" is defined in the Dictionary to the WMA: waterfront land means: (a) the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, or (a1) the bed of any lake, together with any land lying between the bed of the lake and a line drawn parallel to, and the prescribed distance inland of, the shore of the lake, or (a2) the bed of any estuary, together with any land lying between the bed of the estuary and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the estuary, or (b) if the regulations so provide, the bed of the coastal waters of the State, and any land lying between the shoreline of the coastal waters and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the coastal waters, where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. Land that falls into 2 or more of the categories referred to in paragraphs (a), (a1) and (a2) may be waterfront land by virtue of any of the paragraphs relevant to that land. 20The term "lake" is defined: lake includes: (a) a wetland, a lagoon, a saltmarsh and any collection of still water, whether perennial or intermittent and whether natural or artificial, and (b) any water declared by the regulations to be a lake, whether or not it also forms part of a river or estuary, but does not include any water declared by the regulations not to be a lake. 21Relevant policies of the NSW Office of Water include the Controlled Activities - Guidelines for riparian corridors, first issued in February 2008 and reissued in 2011 (the Guidelines). The Guidelines state that when determining an appropriate width for a riparian corridor and the quantity of riparian vegetation that should be protected or re-established on a site, three riparian zones should be considered: the "core riparian zone" (CRZ) which is the land contained within and adjacent to the channel; the "vegetated buffer", which protects the environmental integrity of the CRZ, and which is recommended to be 10m wide, subject to "merit issues"; and the "asset protection zone" (APZ) which is a requirement of the NSW Rural Fire Service. For a "third order" watercourse, which includes Cunningham Creek, the recommended CRZ width is 20-40m, which is a "merit assessment based on riparian functionality of the river, lake or estuary, the site and long-term land use". The Guidelines state that the width of the CRZ "should be measured from the top of the highest bank and on both sides of the watercourse". The Guidelines state that there should be no infrastructure such as roads, drainage, stormwater structures, services etc within the CRZ or the vegetated buffer. 22The site of the proposed collector road is zoned Residential 2A Low Density, 7B Environmental Protection Scenic Buffer, and 7A Environmental Protection Habitat and Catchment under the Coffs Harbour City Local Environmental Plan 2000, and development for the purpose of a road is permissible with consent. 23The Moonee Development Control Plan 2004 (the DCP) was adopted by the Council in October 2004. The DCP applies to the land identified in Map 1 being the land to the east of the Pacific Highway at Moonee, including the site of the Glades Estate and the proposed collector road, and provides for population growth in the release area to 4558 persons. The Traffic and Transport Strategy (at p6) is to provide a collector road system that ensures that the Pacific Highway is not used for local trips, and to upgrade the existing collector road system. The Natural Environment Strategy includes excluding urban development from within 100 m of Moonee Creek, 50 of Skinners Creek and from within 20 m of all other creeks, to protect riparian vegetation and maintain water quality and provide habitat linkages. 24In 2008 the Council and the then Department of Environment and Climate Change prepared the Moonee Creek Estuary Management Plan (EMP). The EMP provides details of strategies to be adopted for the Moonee Creek estuary. Issues of concern for the future management of the Moonee Creek estuary identified in the EMP include poor water quality, runoff from agricultural land use activities, impacts due to disturbance of acid sulphate soils, riverbank erosion, and sediment accretion in the estuary. Specific issues requiring attention are identified at part 3.3 and include water quality, bank erosion and sedimentation, ecology, and future catchment development. At 3.3.3.3 Issue G: Riparian Vegetation Acting as Buffer the EMP notes that fringing vegetation around the estuary acts as a buffer or filter between existing development and valuable estuarine habitats. At 3.3.4.1 Issue H: Impact of Future Development the EMP notes that future development needs to be controlled to ensure it does not place further stress on the estuarine habitat. Part 4 provides objectives of future management. Management Options and Strategies are provided in part 5. Part 5.1.3 Strategies addressing ecology/biodiversity objectives includes Ecol-9: Revegetate foreshores and other degraded areas around the estuary that have been partly or totally cleared of natural vegetation. Revegetated foreshore buffers should ideally be 100m or more wide. 25Management option Ecol-9 is ranked 2/24 for priority of implementation. 26The Part 5 Strategies addressing future catchment development include CD-2: Restrict development from the Moonee Creek foreshores in order to maintain vegetated buffers around the estuary, and ensure that buffers are not relied upon to treat urban runoff, or are cleared for bushfire risk mitigation.

Evidence 27The evidence included a site view, including the route of the proposed collector road which had been pegged by Mr Matthew Cooper, a registered surveyor. Mr Cooper gave evidence on site that he had been involved in the concept design of the road and is familiar with Council standards. If the alignment of the road changes to set back the road at chainage 350m that would tighten up the curve radii. The curve is at minimum radii, and that would exceed the design speed. To address the design speed issue the curve would need to be flattened out, and that would affect the area around chainage 120-140. 28Evidence was given on site by two owners of land over which the collector road is proposed, in support of the proposal. 29Expert evidence was provided by Mr James Warren (ecologist), Mr Brett McCulloch (riverine and aquatic ecology expert), Dr Lucy Ellis (geomorphologist), Mr Fergus Hancock (geomorphologist), and Mr David Morand (soil scientist). Dr Ellis, Mr Hancock and Mr Morand conferenced and provided a joint report on geomorphology issues (exhibit C). Mr McCulloch, Mr Warren and Dr Ellis conferenced and provided a joint report on ecological issues (exhibit B). During the course of the hearing Dr Ellis, Mr Warren, Mr Morand, Mr Hancock and Mr McCulloch held a further conference to consider further questions identified during the site view, and they provided a supplementary joint report (exhibit G). 30In relation to the geomorphological issues, Dr Ellis and Mr Morand were in agreement that the soils at the site are slightly to moderately dispersive and moderately erodible. They agreed that currently the erosion hazard is low due to the stabilising influence of vegetation, however if vegetation is cleared the erosion hazard will increase to moderate. They agreed that an appropriate Erosion and Sediment Control Plan should be implemented during construction and operation of the road. In oral evidence Mr Hancock and Dr Ellis agreed that if the criteria to be addressed were specified it would not normally be necessary to see the Erosion and Sediment Control Plan before consent is granted. Dr Ellis and Mr Hancock addressed the potential for increased scour and erosion during overbank flooding with the proposed location of the road in close proximity to Cunninghams Creek. Mr Hancock recommended conditions, with which Dr Ellis agreed, for further hydrological assessment of the behaviour of the culvert over the unnamed watercourse linked to the road bund and hydrological assessment of impacts to existing properties on Tidal Crescent; specific flood management measures; stormwater management measures to include high flow and flood flow engineering measures to resist scour through the culvert and energy dissipation structures downstream of the culvert; specific protection measures to the unnamed watercourse; additional erosion mitigation and rehabilitation measures for the design of the Cunninhams Creek crossing; and a specific flood management strategy including engineering controls of flood storage and dispersion of re-entry flows into Moonee Creek. Mr Hancock recommended specific conditions for the design of the bridge crossing; while Dr Ellis agreed that the embankment materials should not reduce the cross sectional area of Cunninghams Creek up to a defined flood level, her opinion was that further assessment of the suitability of either a rock armouring or a battered rock revetment should be undertaken as part of the detailed design. In oral evidence, Mr Hancock's opinion was that it would be preferable to have the design of the bridge settled as there are constraints on the construction of the bridge. Dr Ellis's opinion, based on her experience of project scheduling, was that the detailed design would be the next step. 31In the joint report on geomorphological issues (exhibit C) Mr Hancock recommended additional rehabilitation measures along the riparian corridor to Cunninghams Creek from the closest approach to the salt marsh at chainage 420 m to the unvegetated sand flat immediately upstream of the confluence with Moonee Creek. Dr Ellis' opinion was that while some riparian corridor rehabilitation measures would be required between the road and Cunninghams Creek, suitability of specific measures should be considered in a hydrological assessment considering the engineering detailed design in the next phase of the project. 32In their joint report on ecological issues, Mr McCulloch, Dr Ellis and Mr Warren (exhibit B) considered the adequacy of the proposed riparian buffer zone. Mr McCulloch's opinion was that the proposed minimum setback from the high bank to the road edge of 21 m was not sufficient in providing a suitable riparian buffer and was not consistent with the Guidelines, which recommend a minium 30-50 m. Mr McCulloch recommended that the riparian corridor be a minimum of 30m. Dr Ellis considered that the proposed riparian corridor was adequate when assessed in the context of the importance and riparian functionality of the watercourse, the merits of the site and long term land use, which included historically extensive clearing; currently the riparian corridor is less than 10 m wide, bounded by a decades old track. In Dr Ellis' opinion the appropriate remediation of the land between the proposed road and Cunningham's Creek to provide a fully structured riparian corridor with a minimum width of 21m would provide greater buffering capacity than the existing fragmented corridor, and the intent of the Guidelines will be achieved. Mr McCulloch referred to the area of saltmarsh vegetation located between the proposed location of the road and Cunninghams Creek and recommended an established vegetated riparian corridor with a minimum setback of 30 m from the shore of the area of saltmarsh and that the bridge be elevated and span the riparian corridor. Dr Ellis noted that the method of creek crossing had not been finalised, and that it would not be practical to construct the bridge with a 70-80 m span; this had not been a requirement of the nearby Pacific Highway bridge. Mr Warren was of the opinion that the elevation of the bridge as shown on Drawing 08070/10A would ensure conservation of riparian vegetation and allow for fauna passage and riparian communities can be protected by the construction of a physical separation between the saltmarsh and the road and bridge area. 33Mr McCulloch, Dr Ellis and Mr Warren considered the existing geomorphic and biodiversity condition of the stream section that will be affected by the road. Mr McCulloch described the riparian condition of the site affected by the road as ranging from slightly to moderately modified conditions to some pockets of dense vegetation; the riparian zone close to the Pacific Highway is in poor condition and is substantially modified. As a result of the recent road works the geomorphic condition for the section of the creek close to the Pacific Highway bridge is poor/moderate, however the condition improves downstream. Dr Ellis noted that the riparian corridor is in a fragmented state due to the tracks running adjacent to the creek; the geomorphic condition of the creek between the Pacific Highway and the proposed road is poor. 34Mr Warren completed the initial Ecological Assessment on behalf of Rothwell submitted with the development application, which included the 7-part test under s5A of the Threatened Species Conservation Act 1995 (TSC Act), in which he concluded that there would not be a significant impact on either of the two EECs on the site. Mr Warren and Mr McCulloch addressed the effect of the re-alignment of the road in their joint report (exhibit B), Mr McCulloch expressing the opinion that evidence was required to establish that a shift in the road from the location as currently proposed to provide a minimum setback of 30 m would have a significant impact on the Swamp Sclerophyll Forest EEC, and evidence to demonstrate that retaining the Swamp Sclerophyll Forest EEC in its current degraded fragmented and isolated condition had significant benefits which outweigh the benefits of a broader riparian buffer corridor at the recommended minimum of 30 m wide. Mr Warren was of the opinion that the 21 m wide buffer zone was sufficient to protect the ecological values of Cunninghams Creek. A wide buffer zone would be required if no construction or operational measures were implemented to mitigate potential impacts from road construction in the form of polluted stormwater run-off, weed incursion, erosion of creek banks, and trampling of riparian vegetation; the proposed development included such measures in the preparation of a Stormwater and Sediment Control Management Plan, a Riparian restoration plan, a Water Quality Monitoring Plan, and fencing of the riparian buffer zone. 35Mr McCulloch recommended that there should be a water quality monitoring program; Mr Warren agreed, on the basis that the details should be the responsibility of an environmental engineer or water quality expert. Mr McCulloch and Mr Warren disagreed as to whether the proposal is consistent with the guidelines in the EMP. 36Mr Warren provided a supplementary report (exhibit L) assessing the impact of the amended alignment of the proposed road on flora and fauna. Mr Warren noted that the latest alignment was wholly to substantially within the vegetation area assessed for his previous report except for an area of vegetation between chainage 300 and 480. Mr Warren stated that the revised alignment shows a loss of 0.04ha of Coastal Saltmarsh (as opposed to the original 0.07ha) and 0.22ha of Swamp Sclerophyll Forest (as opposed to the original 0.1ha). There will be slightly less loss of saltmarsh and slightly more loss of swamp sclerophyll. Mr Warren noted that the losses are very small, and that the consequent minor alterations to the small losses lead him to believe that there will not be a significant impact on either EEC as a result of the construction of the collector road. In the supplementary joint report (exhibit G) Mr McCulloch expressed agreement with Mr Warren's 7-part test assessment, because of the current condition of the EEC. 37The supplementary joint report prepared by Dr Ellis, Mr Warren, Mr Morand, Mr Hancock and Mr McCulloch (exhibit G) responded to a number of questions agreed between the parties. The experts were asked to consider the method to determine the location of the top of the highest bank of the creek and whether the location shown on drawing 08070/10A is correct. They agreed that the top of bank corresponds to a topographic break in slope that would need to be surveyed in future, and that the survey should be conducted with the input of a geomorphologist; the green dashed line between chainages 280-340 is correct, and the black dashed line between chainages 340 and the bridge crossing should be resurveyed. The experts did not have the correct equipment to define a 30m distance from the top of bank, and noted that a section of the top of bank requires survey between chainage 340 and the bridge crossing. 38The experts were asked to consider likely impacts on the saltmarsh if the collector road and the edge of the batter are located as depicted in Drawing 08070/10A. The experts agreed that, assuming successful implementation of management measures, specifically the Erosion and Sedimentation Control Plan, that will have gained approval from the NSW Office of Water, the ecological and geomorphological condition of the saltmarsh and Cunninghams Creek will be maintained or improved. The management plans should include a Stormwater Control Plan as well as the Erosion and Sedimentation Control Plan, both of which should incorporate contamination control measures. The experts agreed that consideration of impacts should not be confined to the saltmarsh, as the creek system as a whole requires consideration. In relation to that issue, Mr McCulloch stated that he agreed scientifically in his capacity as an ecologist that adverse ecological impacts can be mitigated; however he wished the Court to consider the values of Cunninghams Creek and the broadest possible riparian corridor should be encouraged. The experts agreed that they would be satisfied with a riparian corridor that is a minimum of 21 m wide, so long as the riparian corridor is revegetated and management measures are successfully implemented and incorporate condition 7 and an agreed version of condition 8 of exhibit C. 39The experts were asked to consider whether it is possible to revegetate the top of the bank of Cunninghams Creek such that the revegetation will not cause instability or overburdening of the bank. The experts agreed that the two different creek components requiring vegetation or revegetation are the creek bank, defined as being between the top of bank and the high water mark, and the riparian corridor, being between the road batter and top of bank. They agreed that vegetation can be established and maintained along the berm at the base of the bank and that consideration be given to the soil profile, bank geometry and existing vegetation type to avoid destabilising the bank. They agreed that the existing tracks in the riparian corridor should be rehabilitated by deep ripping and introduction of organic material and topsoil. Successful implementation of a revegetation plan would improve the geomorphic and ecological condition of the riparian corridor and adjacent creek from its current condition; and management plans must be to the satisfaction of the Office of Water. 40Mr McCulloch had provided Dr Ellis and Mr Warren with water quality monitoring data (turbidity and salinity). Dr Ellis and Mr Warren commented that following rainfall the turbidity of water in the creek has been adversely impacted by the construction of the Pacific Highway; during drier periods turbidity levels are within appropriate limits such that there is a low risk that adverse biological effects will occur. 41Expert planning evidence was given by Mr Mark Hannon and Mr Steve O'Connor (exhibits 4 and 5). The planners agreed that the proposed road alignment was the best possible outcome after taking into account a wide range of factors including the constraints as identified in the DCP. The planners were of the opinion that the DCP requires a 20 m buffer for Cunninghams Creek, and that rehabilitation of the buffer is consistent with the DCP requirements. If a 30 m separation to Cunninghams Creek were required that would require a re-design of the proposed residential subdivision of Lot 6 DP 1140702 and a consequent reduction in the lot yield which would not be consistent with the density target in the DCP. The planners agreed that there are compelling arguments to locate the collector road in the proposed alignment rather than closer to the Pacific Highway, as it will provide a significant barrier between the proposed residential development on Lot 6 DP 1140702 facilitating the separation of residential land use and the riparian buffer adjoining Cunninghams Creek, and provide an effective asset protection zone; it will provide an attractive alignment for the location of the proposed Coastal Track identified in the DCP; and will skirt around Very Significant Vegetation identified in the Council's draft Vegetation Conservation Strategy and shown as land to be dedicated to Council as a public reserve under the DCP at the southern end of Lot 6 DP 1140702. In oral evidence Mr Hannon and Mr O'Connor agreed that it would be appropriate to specify in a condition of consent the required setback, and it is not necessary to have survey confirmation at the relevant chainages before consent is granted.

Consideration 42At the conclusion of the evidence it was common ground that the application can be approved; the parties' submissions focussed on the conditions that should be imposed. Applicant's submissions 43Rothwell submits that the original proposed alignment was consistent with the route identified in the DCP and was closer to Cunninghams Creek than the presently proposed alignment. The proposed development has been the subject of assessments of ecological impact, archaeological investigation, acid sulphate soils, flooding, and assessments against relevant planning controls including State Environmental Planning Policy No 71 - Coastal Protection, the Mid North Coast Regional Strategy, and local planning controls. The alignment of the road was changed in response to concerns raised by the agencies to which the proposed development was referred, including the concerns raised by the NSW Office of Water relating to the width of the riparian corridor. The realignment has reduced the potential for erosion and degradation of the riparian corridor. Council's submissions 44The Council submits that the collector road is of strategic importance for the urban release area, and is consistent with the site specific DCP. Its construction in the proposed location is acceptable for planning and ecological reasons. The proposal has undergone a rigorous assessment process and the amended alignment is the result of that, and is the best location for the road. The DCP should be given greater weight than other policies, including the EMP. Minister's submissions 45The Minister submits that consideration of the public interest as required by s 79C(1)(e) of the Act and under s 39(4) and (6A) of the Court Act enables consideration of the relevant matters under s95 of the WMA. The Minister relies on Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 at [53]-[56] to support the submission that environmental impacts that are likely to be considered in relation to a separate application under the WMA, if a likely impact of the development for which consent is sought, must be considered under s 79C of the Act. Under s 93 of the Act the approval body is necessarily limited in the considerations which it can take into account, and there is no basis for integrated development being subject to less scrutiny than any other development application. 46The regulatory framework has changed since the DCP was adopted with its exclusion of development within 20 m of creeks including Cunninghams Creek, and now includes the 2008 and 2011 Guidelines. The Guidelines guide the exercise of the power conferred by s95 of the WMA to approve controlled activities on waterfront land, and the Court should apply them unless there are cogent reasons for departing from them. The EMP proceeded on an erroneous view of what the DCP required as a buffer zone. While the EMP is not a "management plan" for the purposes of s 95(3) of the WMA, it is a plan developed for the area four years after the DCP, and it includes strategies Ecol-9 and CD-2 which require a riparian zone broader than that required under the DCP. The Minister submits that a 30 m riparian zone represents the bare minimum permissible riparian corridor for a third order watercourse such as Cunninghams Creek. Findings 47In undertaking the assessment required by s 79C of the Act, the proposed development is permissible with consent under the LEP, and, accepting the assessment undertaken by the Council (exhibit 8), I am satisfied that it is consistent with the specific provisions of the LEP including those relating to koala habitat (cl 12), potential acid sulphate soils (cl 23) and development on flood prone land (cl 23A). Clause 22 applies to waterways and requires (cl 22(4)) for development on land adjoining the Solitary Islands Marine Park consideration of specified objectives of the Marine Parks Act 1997. The Marine Parks Authority has provided detailed consideration of the proposed development, which addresses those objectives, and has stated its requirements for consents to be issued for the waterway crossings, which are considered below in relation to the proposed conditions. I accept the assessment undertaken by the Council of the proposed development against the provisions of the Mid North Coast Regional Strategy and the applicable state environmental planning policies, being State Environmental Planning Policy No 55 - Remediation of Land and State Environmental Planning Policy No 71 - Coastal Protection, and am satisfied that the proposed development is consistent with the applicable controls. 48Based on the supplementary report by Mr Warren (exhibit L), with which Mr McCulloch agreed, I am satisfied that there will not be a significant impact on either the Coastal Saltmarsh or the Swamp Sclerophyll Forest EEC as a result of the proposed development, and that a species impact statement is not required. 49The joint report of Mr Hannon and Mr O'Connor (exhibit 4) outlines the process of stakeholder consultation and development of the DCP, which replaced the previous development control plan for the urban release area, and which provides for an additional population of 4558 persons. The Masterplan at Map 2 includes a collector road linking the proposed residential precincts to the north of the Moonee Shopping Centre to the local road network. The DCP identifies (Map 4) a number of constraints, being creek buffers, flooding, SEPP 14 wetlands, wetland buffers, protected vegetation, Osprey nest buffer, and Wallum Froglet habitat. Map 5 identifies further limitations to development, being potential Wallum Froglet habitat, high water table, land within 100 m of Solitary Islands Marine Park, and the presence of other valuable vegetation. As noted by Mr Hannon and Mr O'Connor, the DCP was prepared addressing those issues and provides guidelines for future development of land subject to the DCP. 50The DCP requires a 20 m buffer to Cunninghams Creek (p6), and the proposed development is consistent with that requirement. I accept the evidence of Mr Hannon and Mr O'Connor that relocation of the proposed collector road to provide a minimum 30 m separation to Cunninghams Creek would have an impact of the proposed residential subdivision of Lot 6 DP 1140702 and reduce the lot yield, which would not be consistent with the density target nominated in the DCP (Map 7). 51The DCP is a relevant consideration under s 79C(1)(a)(iii) of the Act, and is to be considered as a fundamental element and a focal point of the decision making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. The presently proposed alignment of the road with a buffer of 21m at the pinchpoint is consistent with the provisions of the DCP, and I accept the evidence of the planners that relocation closer to the Pacific Highway to provide a wider buffer would give rise to inconsistency with the density target provided in the DCP. 52The EMP, and the Guidelines, are policies to which regard can be had as an element of the public interest as required by s 79C(1)(e) of the Act: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195. The weight to be given to these policies depends in part on the factors identified by McClellan J in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [91] and [92]. The EMP was developed by the Council in conjunction with the Department of Environment and Climate Change, and was intended to provide a "program of strategic actions to assist government authorities and other stakeholder groups to sustain a healthy estuary through appropriate waterway, foreshore and catchment management" (p 1), and should be given weight in the assessment of the public interest. 53I accept the Minister's submission that the Guidelines are intended to guide the exercise of the power conferred by s 95 of the WMA to approve controlled activities on waterfront land, and advance the water management principles in s5 of the WMA. I accept that the principles provided in the Guidelines may be taken into account in the assessment required by s 79C(1)(b), namely, consideration of the likely impacts of the proposed development, including environmental impacts on the environment. 54The Minister submits that in adopting the 20 m zone in the DCP the Council rejected submissions made by the former Department of Environment and Conservation, and that the DCP was made in the absence of a regulatory control such as that now provided in the Guidelines. The EMP does not represent government policy on the riparian zone, and proceeded on the (incorrect) assumption that the DCP excluded urban development within 50 m of SEPP wetlands and 100m from the Solitary Islands Marine Park. The EMP considered riverbank erosion and sediment accretion in the estuary and its effect on fisheries habitat and water quality and destruction of saltmarsh, and accepted these phenomena as problems that required attention. 55In considering the application of the Guidelines, I note that the Guidelines make clear that determining an appropriate width for a riparian corridor including the CRZ and a vegetated buffer is not an arbitrary mechanical process. The width of the CRZ is to be determined by assessing the importance and riparian functionality of the watercourse, the merits of the site and long-term land use: the recommended width in the case of Cunninghams Creek is 20-40m. The vegetated buffer should be wide enough to protect the CRZ from weed invasion, micro-climate changes, litter, trampling and pollution; the recommended minimum of 10m is subject to merit assessment. 56The expert evidence, which was supported by the view, establishes that the location of the proposed road has been the subject of previous clearing and disturbance of vegetation; in parts, the present riparian corridor is less than 10m wide; and in parts it is in poor condition. Mr McCulloch's water quality monitoring data, which was supported by the view, confirms that the turbidity of water in the creek has been adversely affected by the roadworks on the Pacific Highway. The experts were agreed that measures for erosion and sediment control, flood management, stormwater management, water quality monitoring, and rehabilitation measures for the riparian corridor, are required. The experts agreed that assuming successful implementation of management measures, the ecological and geomorphological condition of the saltmarsh and Cunninghams Creek will be maintained or improved. While Mr McCulloch expressed the opinion that the riparian corridor should be 30m wide, consistent with the Guidelines, and that the broadest possible riparian corridor should be encouraged, he agreed with Dr Ellis, Mr Warren, Mr Morand and Mr Hancock that a riparian corridor a minimum of 21 m wide would be adequate, so long as it is revegetated and managed and appropriate conditions are imposed. 57I accept the expert evidence. The proposed riparian corridor, ranging from 21 m at the pinchpoint to 30 m and above, is consistent with the requirements of the DCP, and has been supported by the experts following the merits assessment of the watercourse and the site contemplated by the Guidelines. The assessment has taken into consideration the strategies identified in the EMP, in particular the need for controls on development, and the need for revegetation of the foreshores and degraded areas. I am satisfied that the proposed development can be approved, subject to the imposition of appropriate conditions to meet the management requirements identified in the expert evidence.

Conditions 58The Council provided draft Conditions of Consent (exhibit 6). The Minister provided draft GTAs (exhibit 2A). Rothwell responded to the draft GTAs (exhibit 3A) and to the consolidated draft Conditions and GTAs (exhibit M). During the hearing the Minister proposed additional conditions (exhibit 5A). The proposed conditions and GTAs were the subject of oral submissions, and written submissions after the hearing. 59In considering the competing submissions concerning the proposed conditions, the starting point is s 80A of the Act, in particular s 80A(1)(a), which permits the imposition of a condition if it relates to any matter referred to in s 79C (1) of relevance to the development the subject of the consent. Identification of the nexus between the development authorised by the consent and the proposed condition is required both by s 80A(1)(a) and by the proper application of the tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578, namely that a condition can only be imposed for a planning purpose, must reasonably and fairly relate to the development, and must not be so unreasonable that no reasonable authority could have imposed it: Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308. Council's proposed conditions 60Considering first the disputed conditions as proposed by the Council, condition 33 reads: All existing vehicular accesses from the Pacific Highway to the lots the subject of this application (Lot 6, DP 1140702, Lot 6, DP252223 and Lot 1, DP1097743) being legally and physically closed with evidence of this action being provided to Council prior to the Collector Road being registered as a public road. 61The Council submits that this condition is required by the Roads and Maritime Services agency, and is supported by the DCP. Rothwell submits that the condition does not relate to the development the subject of the application; the three lots identified are either unused or used for low scale residential purposes; and there is an issue as to whether the applicant has the capacity to implement the requirement. 62I accept that a condition such as condition 33 would be consistent with the strategic framework provided by the DCP, however I am not persuaded that the relationship between the proposed development and the condition is sufficiently direct for it to be a proper exercise of the power conferred by s 80A(1)(a). The three lots are not owned by Rothwell, and the evidence before me does not establish that Rothwell would have the capacity to implement the requirement sought to be imposed by condition 33. Condition 33 should not be imposed. DPI Fisheries conditions 63Conditions 38-45 as provided by the Council are the GTAs obtained from the Department of Primary Industry Fisheries (DPI Fisheries) in relation to the triggering of ss 201 and 205 of the FMA by the proposed works, as notified to the Council by letter dated 19 August 2011 (exhibit 2, tab 6). The Minister supports the submissions of the Council in relation to those conditions. 64Conditions 38, 39 and 41 specify requirements to be complied with before the release of the Construction Certificate in relation to bridge design and construction methodology, a Saltmarsh Compensation Plan, and design and construction of the culvert. Those conditions as proposed by the Council, reflecting the GTAs, require approval by DPI Fisheries. Rothwell submits that those conditions should specify release of the Construction Certificate for the bridge in conditions 38 and 39, and for the culvert in condition 41. Rothwell submits that these amendments will enable it to proceed with other work on the road before the plans for the bridge are finalised. The Council opposes those amendments in relation to these conditions, on the basis that there are issues relevant to the concerns raised by DPI Fisheries relevant to all the work required for construction of the road, for example in relation to sediment control. Rothwell submits that these conditions should provide for final approval by the Council rather than DPI Fisheries, on the basis that the road will be dedicated to the Council. The Council opposes that amendment. The Council accepts that it is appropriate for the Saltmarsh Compensation Plan referred to in condition 39 to be part of the Vegetation Management Plan (VMP) referred to in condition 13. 65Condition 40 requires payment of a $100,000 bond to DPI Fisheries. The letter of 19 August 2011 requires payment of the bond within 14 days of Council issuing the Construction Certificate; Rothwell and the Council are in agreement that this should be the Construction Certificate relating to the bridge. Conditions 42 and 43 require that permits be obtained under sections 205, and 198-202 respectively, of the FMA. The GTAs specify that such permits be obtained "prior to commencement of the works at the site"; Rothwell proposes that condition 41 require a s205 permit before commencement of any works "within 20m of Cunninghams Creek, the unnamed creek or any saltmarsh", and that condition 43 require a permit for dredging and reclamation activities "prior to commencement of such activities". The Council does not support a change to either condition, or alternatively that condition 42 refer to works within 40 m of Cunninghams Creek rather than 20 m, and in relation to condition 43 in the alternative supports the amendment proposed by Rothwell. 66Condition 44 requires use of environmental safeguards such as silt curtains and booms during construction of the revetment wall and erosion and sediment controls: Rothwell agrees to that condition. 67Condition 45 requires that before the road is registered as a public road the proponent is to demonstrate to the Council, by way of signed letter from DPI Fisheries, the satisfactory progress or completion of the Saltmarsh Compensation Plan. Rothwell submits that this condition duplicates the requirement in condition 36 and should be deleted; the Council submits it should be retained because it is part of the GTAs provided by DPI Fisheries; DPI Fisheries has expertise in saltmarsh compensation and it is reasonable that it seeks to report on this work. 68The Court is not constrained to adopt conditions proposed by an approval body in the form of GTAs. Section 39(6A)(c) of the Court Act enables the Court to determine an appeal even though a consent granted as a result of the appeal, which would include the conditions imposed on such a consent, is inconsistent with the GTAs. However, given the consequences of the grant of a development consent for the subsequent exercise by the approval body of its function of determining an approval as provided in s93 of the Act, in my view it would be appropriate to exercise caution before departing from GTAs and imposing conditions inconsistent with those GTAs, and any departure would have to be supported by the evidence before the Court. 69The letter of 19 August 2011 confirms that while DPI Fisheries was prepared to provide GTAs, it still held significant concerns about the proposed development, in particular in relation to the specific extent of direct and indirect impacts of the proposal including construction impacts on the saltmarsh, and details of a Saltmarsh Compensatory Plan. DPI Fisheries noted that while the amended layout of the road will result in less impact on saltmarsh and Cunninghams Creek, further details were needed; that DPI Fisheries' strong preference was for preparation of a Saltmarsh Compensatory Plan to offset direct impacts on saltmarsh at a ratio of 2:1, as part of the development assessment process before GTAs are issued; and that while the amended alignment improved the buffer width to Cunninghams Creek it was still less than the buffer zone required by DPI Fisheries. The letter concluded that the absence of both detailed plans for the proposed bridge, and a Saltmarsh Compensatory Plan demonstrating how the EEC would be adequately and effectively compensated at a ratio of 2:1, "necessitates DPI Fisheries' ongoing involvement in assessment of this proposal prior to the release of a Construction Certificate". The GTAs provided by DPI Fisheries include such ongoing involvement. 70In the context of these qualifications expressed by DPI Fisheries, I am not persuaded that the conditions should depart from the terms of the GTAs as provided by DPI Fisheries. It is appropriate in my view that DPI Fisheries, rather than the Council, have the final approval for design and construction methodology for the bridge and culvert crossings and the Saltmarsh Compensation Plan, and that the timing of such approval be as required by DPI Fisheries. Conditions 38 and 39 should reflect the GTAs provided by DPI Fisheries. While the Council agreed to Rothwell's proposal that the bond required by condition 40 be paid before release of the Construction Certificate for the bridge, it is consistent with the Council's position on conditions 38 and 39 that works undertaken before construction of the bridge may have an impact, for example, sediment, on matters of concern to DPI Fisheries that the bond be paid at the earlier time proposed by DPI Fisheries. I am not persuaded that it is appropriate to amend condition 40, or conditions 41, 42, or 43 as proposed, and those conditions should reflect the GTAs provided by DPI Fisheries. Marine Parks Authority conditions 71Conditions 46 and 47 reflect the requirements of the Marine Parks Authority as notified to the Council by letter dated 15 August 2011 and by email on 24 August 2011 (exhibit 1, tabs 6, 8). Condition 46 as proposed by the Council requires that before the release of any Construction Certificate for the bridge or culvert the proponent is to provide evidence to the Council that consents for the waterways crossings have been issued by the Marine Parks Authority; and condition 47 requires that the proponent liaise with the Marine Parks Authority in relation to the design and construction methodology. The Council proposes that condition 47 require the written endorsement by the Marine Parks Authority of the design details, surveys, methods of construction and other matters including management of pollutants including sediment. Rothwell proposes amendment of condition 47 to delete the requirement for written approval of the Marine Parks Authority. In the letter dated 15 August 2011 the Marine Parks Authority stated that it required further construction details of the crossings "to ensure that the waterways will not be significantly impacted as a result of the proposed crossings". The email correspondence between the Council and the Marine Parks Authority included a statement that the Council would impose a condition that "would require the MPA's signoff on the final design prior to the issue of any Construction Certificate for the water way crossings", and confirmation that the detailed design work could be provided at Construction certificate stage, and that details of the construction and construction methods, which would need to be to the satisfaction of the Marine Parks Authority, would be required for the issuing of a consent for the crossing. Given the requirement to obtain that consent, the requirement for endorsement of the waterway crossings design and construction methodology before the issue of a Construction Certificate for those crossings would in my view be appropriate. Conditions 46 and 47 should be in the form proposed by the Council. NSW Office of Water conditions 72The conditions reflecting the GTAs provided by the Minister appear after conditions 1-47, and are separately numbered 1-32, in exhibit M. Conditions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 (if amended to require maintenance of the riparian corridor for 36 months), 17, 19, 20, 22, 22-27, 28, 29, 30 and 31 are agreed between the parties. 73The parties disagree as to the definition of "saltmarsh" that should be included in the conditions. The definition proposed by the Minister is: the salt marsh includes an area restricted to the intertidal zone adjacent to Cunninghams Creek and the location of the proposed bridge. The salt marsh is populated with floral species that includes: Sporobolus virgincus, and may include Schoenus brevifolius and Baumea juncea. 74Rothwell submits that the reference should be to the "supratidal" zone rather than the "intertidal" zone, on the basis that "intertidal" is scientifically incorrect. The Minister submits that the definition should be consistent with the legislation. 75Part 3 of Schedule 1 to the TSC Act includes as an EEC "Coastal Saltmarsh in the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (as described in the determination of the Scientific Committee under Division 5 of Part 2)". The Scientific Committee determination identifies Coastal Saltmarsh as being:

Coastal Saltmarsh in the NSW North Coast, Sydney Basin and South East Corner Bioregions is the name given to the ecological community occurring in the intertidal zone on the shores of estuaries and lagoons including when they are intermittently closed along the NSW coast. ... 76I agree with the Minister that the definition should be consistent with that used in the relevant legislation. 77The conditions relating to the riparian corridor as proposed by the Minister (exhibit 2A) are as follows: Riparian Corridor 14.The riparian corridor must be fenced off at the boundary of the disturbance area in accordance with a plan approved by the Office. Explanation:This condition provides ongoing protection of riparian corridor from future negative anthropomorphic impacts. 15.A vegetated, well structured riparian corridor of a minimum width of 21 metres, must be established and maintained for a period of 36 months from the date of completion of the controlled activity works from the top of the highest bank of Cunningham's Creek to a fence constructed along the boundary of the disturbed area in accordance with a VMP approved by the Office. Explanation:This condition ensures that a fully functioning riparian corridor is providing protection of the waterfront land from the ongoing impacts of the controlled activity and the resultant permanent structures. The condition provides for a riparian corridor which filters surface waters, not treated by stormwater treatment devices so removing pollutants before the water enters the creek system. 16.Vegetation must be established and maintained for a period of 36 months from the date of completion of the controlled activity works between the top of the highest bank of Cunninghams creek and the mean high water mark, in accordance with a VMP approved by the Office. Explanation: This condition ensures that a fully functioning riparian corridor is available to protect Cunninghams Creek and its associated ecosystems from the ongoing impacts of the controlled activity and the resultant permanent structures. The condition provides for a riparian corridor which filters surface waters, not treated by stormwater treatment devices so removing pollutants before the water enters the creek system. 17.A densely vegetated, well structured riparian corridor must be established and maintained for a period of 36 months from the date of completion of the controlled activity works along the unnamed creek for a distance of 24 metres upstream and 24 metres downstream of the proposed culvert, and a distance of at least 30 metres inland from the top of the highest bank of the unnamed creek in accordance with a VMP approved by the Office. Explanation:As for condition 19. This condition ensures that a fully functioning riparian corridor is available to protect the unnamed stream and its associated ecosystems from the ongoing impacts of the controlled activity and the resultant permanent structures. Also provides for the filtering of surface waters, not treated by stormwater treatment devices, removing pollutants before it enters the creeks. 18.Dense well structured vegetation must be established and maintained for a period of 36 months from the date of completion of the controlled activity works between the top of the highest bank of the unnamed creek and the mean high water mark, in accordance with a VMP approved by the Office. Explanation:This condition ensures that a fully functioning riparian corridor is available to protect the unnamed stream and its associated ecosystems from the ongoing impacts of the controlled activity and the resultant permanent structures. Also provides for the filtering of surface waters, not treated by stormwater treatment devices, removing pollutants before it enters the creeks. 19.The riparian corridor must not contain infrastructure such as footpaths, stormwater structures or services other than in accordance with a plan approved by the NSW Office. Explanation:This condition ensures that there is no infrastructure located within the riparian corridor and that the riparian corridor is not subject to repeated disturbance arising from maintenance of infrastructure. 20.The existing dirt track(s) traversing the riparian corridor must be revegetated. The track/s must be deep-ripped to reduce soil compaction to aid in the establishment of vegetation planted in accordance with a plan approved by the Office. Any rubbish or foreign material uncovered or disturbed by the deep ripping must be removed and appropriately disposed of at an off- site location. Explanation:This condition ensures full revegetation of the riparian zone. 78Rothwell submits that conditions 15 and 16 relate to Cunninghams Creek and conditions 17 and 18 relate to the unnamed creek. Rothwell initially sought to insert the words "Where appropriate" at the beginning of conditions 16 and 18, to reflect the experts' agreement (exhibit G) that different creek components will have different vegetation considerations, and that careful consideration would need to be given to soil profile, bank geometry and existing vegetation types to avoid destabilising the bank. Rothwell submits that it is too early to specify the location and type vegetation (eg "dense") that will need to be established within the riparian corridor. The insertion of the words "where appropriate" was designed to allow flexibility in this regard. In written submissions provided after the hearing, Rothwell submits that conditions 16 and 18 are not necessary at all and should be deleted. Conditions 15 and 17 are sufficient to ensure that a well structured riparian corridor with appropriate vegetation is established and maintained in accordance with a VMP approved by the Office. Conditions 16 and 18 are therefore unnecessary and may cause mischief to the extent that they may be viewed as prescribing the type or location of vegetation that must be established within the corridor. 79The Minister submits that conditions 16 and 18 should be maintained. The explanations for the insertion of the conditions in the first instance notes that the conditions ensure that a fully functioning riparian corridor is available to protect respectively Cunninghams Creek and the unnamed creek and the associated ecosystems from the impacts of the controlled activity and the resultant permanent structures. The conditions provide for a riparian corridor which filters surface waters, not treated by stormwater treatment devices, so removing pollutants before the water enters the creek system. The Minister submits that the vegetation management plan required by the consent conditions is required to address a well structured riparian corridor and will necessarily include specific provisions for the shrub and ground cover stratum. While it maybe argued that a large tree on a steep slope could be inappropriate it is difficult to maintain the same argument for shrubs, grasses and other ground covers. If the applicant believes that re-vegetating the zone between the top of the highest bank and the mean high water mark is inappropriate then the justification should be made in the vegetation management plan, allow further assessment on a site specific basis, rather than merely deleting it as a condition of consent. The Minister submits that conditions 16 and 18 do not prescribe the type or location or vegetation in any manner which would be inconsistent with, or cause mischief to, the requirements of a VMP. Condition 16 was designed to supplement condition 15 and condition 18 to supplement condition 17. 80I accept the Minister's submission that conditions 16 and 18 have work to do in providing appropriate rehabilitation and management of vegetation as supported by the experts, in addition to conditions 15 and 17. Conditions 16 and 18 should be maintained, and condition 17 should be in the form proposed by the Minister. 81The Minister submits that additional conditions should be included (exhibit 5A). The first such condition relates to the distance of the road from Cunninghams Creek at the pinchpoint. During the hearing the Minister proposed a condition in the following form: No part of the collector road, including the batter, between chainages 340m and 380m, is to encroach within a distance of 21 metres from the top of the highest bank of Cunninghams Creek. Confirmation that this requirement has been met shall be provided by a suitably qualified fluvial geomorphologist, acceptable to the office, and a registered surveyor, prior to the issue of the construction certificate. 82The Minister's amended condition now reads: No part of the collector road, including the batter, between chainages 340m and 380m, is to encroach within a distance of 21 metres from the top of the highest bank of Cunninghams Creek. Confirmation that this requirement has been met shall be provided by a suitably qualified fluvial geomorphologist, mutually agreed upon between the parties and paid for by the applicant, and a registered surveyor, prior to the issue of the construction certificate. 83Rothwell does not oppose this condition, subject to deletion of the words "mutually agreed between the parties". Rothwell submits that the NSW Office of Water should not have any role in selecting its fluvial geomorphological expert to determine what is an issue of fact that any suitably qualified expert should be able to determine. To require a "sign off" by the Office and effectively allow the Office a power of veto over the choice of expert would impose an unjustified burden on the applicant. 84The Minister accepts Rothwell's objection to the requirement that the geomorphologist referred to in the proposed be acceptable to the Office of Water, and submits that the issue can be resolved by appointing a geomorphologist mutually agreed upon by the parties. The Minister notes the agreement of the experts (exhibit G) that the top of bank corresponds to a topographic break in slope, however submits that is not necessarily a straightforward process in the field, and that a requirement that the geomorphologist be agreed between the parties is a fair and neutral middle ground. 85The Council proposes that the condition be worded as follows: No part of the Collector Road design including the batter between chainages 340 m and 380 m is to encroach within a distance of 21 metres from the top of the highest bank of Cunninghams Creek. Confirmation that this requirement has been met shall be provided by a suitably qualified fluvial geomorphologist, and a registered surveyor, prior to the issue of the construction certificate. 86The purpose of this proposed condition is to ensure an accurate, objective, and verifiable measurement of the accepted minimum buffer of 21 m. In the context where the riparian zone is less than the minimum width recommended in the Guidelines, and in the context of the importance of the revegetation and management measures agreed to by the experts, I agree with the Minister that the selection of the fluvial geomorphologist should have input from the NSW Office of Water. The condition should be worded as proposed in its amended form by the Minister. 87The Minister proposes the addition of the following conditions: 14APrior to issue of a construction certificate for any works in, on or under waterfront land as defined in the Water Management Act 2000, a suitably qualified fluvial geomorphologist, mutually agreed upon between the parties and paid for by the applicant, is to identify the location of the top of the highest bank of Cunninghams Creek between chainages 340m and 380m as depicted on Drawing 08070/10A prepared by Resource Design Management dated 30 January 2012. 14BThe fluvial geomorphologist referred to in condition 14A is to be accompanied on site by a registered surveyor, paid for by the applicant, who is then to produce a plan indicating the top of the highest bank of Cunninghams Creek between chainages 340m and 380m as depicted in Drawing 08070/10A prepared by Resource Design Management dated 30 January 2012 in relation to: (i)the edge of the saltmarsh; and, (ii)the top of the bank of the tidal channel of Cunninghams Creek. 14CThe survey plan referred to in condition 14B is to indicate a line drawn parallel to and a distance of 21m inland of the top of the highest bank of Cunninghams Creek and the saltmarsh. 88Rothwell opposes conditions 14A-14C on the basis that they are unnecessary and the issue is already adequately dealt with in the condition requiring a 21 m distance to Cunninghams Creek, which the applicant is happy to accept. Rothwell submits that if the Court wishes to impose these further additional conditions, the words "mutually agreed upon between the parties" be deleted from condition 14A; (i) be deleted from condition 14B; and the words "and the saltmarsh" be deleted from condition 14C. Rothwell notes that the experts did not address the issue of salt marsh in their evidence. 89The Minister seeks to include conditions 14A-14C on the basis that they merely serve to provide information. As a key issue in these proceedings has been the width of the riparian buffer zone, it is the Minister's view that precise identification of the location (namely the top the highest bank of Cunninghams Creek) from which this distance / width of riparian zone will be measured, is critical. The proposed conditions will enable a precise and scientific identification of the top of the highest bank. In oral submissions the Minister submitted that a reference to "saltmarsh" is required because that is relevant to the definition of "lake" in the definition of "waterfront land". In subsequent written submissions the Minister submits that if the Court concludes that the identification of the edge of the saltmarsh can be achieved in the absence of condition 14B(i) and the reference to the saltmarsh in 14C, the Minister would still maintain the view that the balance of conditions 14A, 14B and 14C should be included. Condition 14B(ii) would not be pressed by Minister. 90The Council proposes the deletion of any reference to "acceptable to the office" in condition 14A; the deletion of (i) and (ii) from condition 14B; and the deletion of the words "and the saltmarsh" from condition 14C. 91Condition 14A supports the condition requiring no encroachment of the road including the batter within 21 m of the top of the highest bank of Cunninghams Creek, and conditions 14B and 14C provide further detail as to implementation of the identification survey requirement. The definition of "waterfront land" includes, as part of the definition of "lake", "a saltmarsh". Conditions 14A, 14B and 14C should be imposed in the modified form proposed by the Minister, that is, with condition 14B(i) and the reference to "saltmarsh" in condition 14C, deleted. Deferred commencement condition 92As noted in [8] above, Mr Barker's primary position was that development consent should be refused. Mr Barker will not permit anyone to enter his property in order to physically construct any part of a road, and that is a matter of which innocent third parties should be aware. Mr Barker proposes (exhibit 3) a deferred commencement condition as follows: This consent shall not operate until the applicant satisfies the consent authority by producing a copy of the consent in writing of the owner of lot 6 DP 252223 ("Lot 6") to the commencement of any building, engineering or construction work relating to the consent. Upon the consent authority giving written notice to the applicant and owner of Lot 6 of being satisfied as to that matter, the consent shall become operative and take effect from the date of such notification. 93In the letter dated 1 March 2012 (exhibit 9) Mr Barker's solicitor repeated the concern that innocent third parties, such as prospective purchasers of parts of Rothwell's proposed subdivision, other nearby land owners and financiers, not be misled by the consent if granted. A further version of a deferred commencement condition was proposed: This consent shall not operate (and no building, engineering or construction work relating to the consent may be carried out) until- (a) the applicant satisfies the consent authority that work may be lawfully done upon the land comprising so much of Lot 6 DP 252223 ("Lot 6") as is traversed by the proposed road the subject of this consent ("Lot 6 Road Corridor"), by doing one of the following things, namely, either: (i) producing a copy of the consent in writing of the owner at that time of the Lot 6 Road Corridor to the carrying out of the work relating to the consent upon the Lot 6 Road Corridor; or (ii) producing a copy of a registered easement authorising the entry onto Lot 6 and the carrying out of such work, and (b) the consent authority notifies that applicant and the owner at that time of Lot 6 and, if it is any different ownership to Lot 6, the Lot 6 Road Corridor. Upon the consent authority giving written notice as referred to in sub-paragraph (b) of being satisfied as to that matter, the consent shall become operative and take effect from the date of such notification. 94The Council opposes the imposition of such a condition, submitting that the determination by Craig J related to owners consent to lodge the development application, and the issue of whether the road is ever constructed is not part of the assessment on appeal under s 97 of the Act. Rothwell opposes the condition, submitting that the rights of a private landholder are not relevant to an assessment of a development application under s 79C of the Act. 95I am not satisfied that a deferred commencement condition in either of the forms proposed would be appropriate or necessary. As Craig J observed in Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19 at [37], the grant of development consent in this appeal would have no impact upon the proprietary rights of Mr Barker, or those of the owners of the other two lots over which the collector road is proposed. While the Project Approval (as modified) would permit the issue of a construction certificate to undertake bulk earthworks on the Glades Estate site (condition B1A, Sch 2), the issue of any other Construction Certificate for the project depends on there being evidence of appropriate legal agreements signed with the owners of the three lots for the construction of the collector road and associated project infrastructure works over the respective lots (condition B1(2), Sch 2). The collector road must be constructed and completed to the satisfaction of Council and dedicated as a public road for its full alignment before the issue of a subdivision certificate for any of the lots in the Glades Estate project (condition E3, Sch 2). Those conditions operate independently of the proprietary rights of the owners of the three lots, and provide protection for third parties.

Conclusion 96For the above reasons, I am satisfied that the proposed development can be approved and consent granted to Development Application No 1132/10 subject to conditions in the form determined above. The final version of those conditions should incorporate sequential numbering, rather than the separate numbering adopted in exhibit M. The plans referenced in condition 3 should be updated. 97The parties are directed to provide final Conditions of consent reflecting these reasons, and copies of the plans referenced in condition 3, by 13 June 2012, following which final orders will be made in chambers. Linda Pearson 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. Decision last updated: 06 June 2012

(2003) 129 LGERA 195

(2001) 115 LGERA 373

At a glance

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Judgment (7 paragraphs)

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Cases Cited (7)