86 Accordingly, I do not consider the achievement of these functions precludes an access way. But it would be of small scale and a less formal nature and alignment, which would then allow for a more informal natural planting regime. The proposed 6m wide, formalised planted 'shelter belt' within the isolated section adjacent to stage1 and abutting the southern boundaries seems to be an uncommon landscaping feature in this precinct.
87 I have reached this position having considered the 2 design options in Plan 5.1 and Plan 5.2 of the CP. DCP 11 shows the shelter belt for the entire length of the unmade road reserve and there can be residential lots adjoining stage 1 and stages 3, 5 and 6. As no differentiation is made in the DCP for the stage 1 area, it seems to me that the more appropriate and consistent shelter belt scheme is that in Plan 5.2. As I have noted, this would not necessarily preclude an accessway. In these circumstances, I consider the extensive earthworks forming Road 3 and subsequent revegetated shelter belt does not adequately satisfy the stated environmental objectives.
88 It seems to me that the existing development controls are endeavouring to maintain the existing vegetation and restrict the scale of development within the unmade road reserve so as to achieve the desired future character. I do not consider the extent of the 6m wide (carriageway) road and intrusion of lots 30 and 31 achieves this, particularly the disruptive effect lots 30 and 31 would have on the continuity of any pathway and shelter belt.
5.7 Objections
89 A considerable number of written and oral objections were lodged and have been considered. Most of the points of concern have been subsequently addressed by the experts and satisfactory outcomes incorporated in the CP. However, my assessment of the main objections is summarised as follows:
Sewer moratorium ; The applicant has complied with the requirements of cl 45 of BLEP by way of the issue of the licence. This allows the OSMS for Stage 1, following which it is anticipated the remaining stages will be able to connect to the new sewerage scheme when it is operationally balanced. The engineering evidence is that the OSMS will incorporate a high level of environmental safeguards.
Open space/parkland provision ; I understand that the CP incorporates adequate amounts of open space land, which together with the s94 contributions will provide an acceptable level of provision and amenity. The open space development incorporates the planting of some 70000 trees within the riparian zone, which should result in a significant positive environmental contribution to this area degraded from previous grazing.
Allotment size : This concern relates to the 3km separation distance of the development from the town centre, whereby the objector considers larger rural/residential sized would be more appropriate. Having considered the various strategic planning reports, I am satisfied the proposed lot density represents economic and orderly development and complies with the strategic planning objectives of providing for a variety of lot sizes.
Flood free access ; This concern is that main access to the development is via Left Bank Drive, which is subject to periodic flooding that prevents access to and from the area in larger flood events. The engineers considered this issue and agreed that it would be appropriate to place additional flood depth markers in strategic locations.
Whilst there is an access risk due to flooding, it seems to me that this risk would have been considered in the initial environmental studies, which resulted in the subject land being considered suitable as a 'release area' and significantly zoned residential 2(a). I accept then that the level of risk presented to residents of the new estate will be similar to that experienced by the residents of the Chincogan View Estate that has existed for some years, which council apparently considers reasonable.
As the external access point is somewhat remote from the site, any upgrading works would be priority matters for council.
Shelter belt reserve ; This objection is that the proposed bikeway/pathway is too narrow adjacent to Lot 31. As such it will reduce privacy and the amenity of the adjacent rural/residential lots and therefore this lot should be eliminated. Other objections concerned the unsuitability of allowing the road within the reserve. I have previously commented on this.
Flora and fauna conservation ; This concern is whether adequate provision has been made for movement corridors, particularly koalas. But I consider the CP now adequately incorporates the objectives of the original DCPs and other strategic controls, in respect of this issue. A complete assessment has been made for Stage 1 and further detailed field studies will be required prior to the approval of further stages. The substantial revegetation of the riparian zone should make a positive contribution. I am satisfied that the CP adequately outlines proposals for the future development of this designated release area.
6 Submissions (clause 31 BLEP )
90 I have carefully considered Mr Tomasetti's submissions in reply regarding clause 31 of the BLEP. This clause was not specified in the SoFC and Mr Tomasetti submits it is not open for the council to raise it in its final submissions. In support of this submission he cites the 'Practice Note in Class 1 Development Appeals', which provides:
2. This practice note applies to appeals under ss 97 and 98, and applications under ss 96, 96AA and 96A of the Environmental Planning and Assessment Act 1979 in Class 1 of the Court's jurisdiction ("development appeals"). This practice note is to be known as Practice Note - Class 1 Development Appeals.
8. The respondent consent authority is to file and serve a statement of facts and contentions in accordance with Schedule B before 4.00pm on the third last working day before the first return of the proceedings.
10. If any party seeks to raise an issue of fact or law that it contends precludes the grant of consent or approval to the application, then the party raising that issue is to identify it in its statement of facts and contentions.
31. Parties require leave of the Court to amend their statement of facts and contentions. ... leave is to be sought by notice of motion accompanied by a short affidavit in support explaining the reasons for leave being sought.
91 Mr Tomasetti also relies on the authority in Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 where Justice Biscoe said:
"RAISING A NEW ARGUMENT ON APPEAL
44 The proponent submits that as the Senior Commissioner considered and determined all the council's contentions unfavourably to the council, it is not open to the council to say on appeal that he should have done more. The submission warrants consideration of the statutory requirement to define and address the real issues in proceedings and the role of a council's contentions in defining the real issues.
45 The overriding purpose of the Civil Procedure Act 2005 is to facilitate the just, quick and cheap resolution of "the real issues" in the proceedings: s 56(1). The Court is empowered to give such directions as it thinks fit for the speedy determination of the "real issues" between the parties: s 61(1). In order to identify and determine the "real issues" in an appeal from a council refusal of a development application, the Court's practice is to direct the council to file and serve a statement of facts and contentions prior to the first return date: Practice Note Class 1 Development Appeals paragraph 8. ... the statement of facts and contentions is a vehicle for the council to identify any provisions of an environmental planning instrument that it contends are "of relevance" to the development and to make precise contentions as to why consideration of those provisions should lead the Court to refuse the development application. It is also a vehicle for the council (among other things) to make merit contentions as to why the development application should be refused.
46 ...
47 In Rowe v Australian United Steam Navigation Company Ltd (1909) 9 CLR 1 at 24 Isaacs J said:
"...it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopt at the trial."
48 In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385 - 386 Mahoney JA said:
"...the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them..."
49 In University of Wollongong v Metwally [No 2] (1985) 59 AUR 481 at 483 the High Court stated:
"It is elementary that a party is bound by the conduct of his case..."
50 ...
51 ...
52 ...
53 In Design Power Assocs Pty Ltd v Willoughby City Council [2005] NSWLEC 470, (2005) 148 LGERA 233, Lloyd J, after reviewing some of the above authorities, said at [37] to [40]:
"[37] In the light of these authorities I find that the commissioner did not make any error of law in failing to refer to SEPP No 19, SEPP No 56 and SREP No 23. To allow the appeal on this ground could also set at nought the Practice Direction of the Court and Pt 13, r 14 of the Court Rules as to identification of the issues; ...
[38] The council argues that s 79C of the EP&A Act nevertheless mandates consideration of the relevant environmental planning instruments. However, in Segal v Waverley Council (2005) 64 NSWLR 177, the Court of Appeal drew a distinction between administrative decision-making at the level of executive or local government, and a dispute-resolver such as a judge or other judicial or quasi judicial officer (such as a commissioner of the Land and Environment Court), who is called upon to decide issues raised by the parties in adversarial litigation. In that case Tobias JA (Beazley and Basten JJA concurring) said at [42]:
'In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them.
In such cases, 'the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties'
(At [95], emphasis added.)
[39] In Segal it was held that a commissioner of the Land and Environment Court is only 'bound to address the principal contested issues that were joined between the parties' (at [44], [99]), or 'the principal, central or critical issue the subject of the contest between the parties' (at [45], [69], [92])."
54 The council's submitted inference that the Senior Commissioner did not consider or address cli 2 and 45 is based on the fact that he did not expressly refer to those clauses in contrast to his express reference to cl 44. Having regard to the way the council conducted its case, that inference does not arise so far as concerns matters in contention before the Senior Commissioner and it was not essential that he expressly refer and relate his conclusions to cll 2 and 45.
55 In my opinion, the Senior Commissioner was not bound to do more than decide the council's contentions, which he did unfavourably to the council, and it is not open to the council to say on appeal that he erred in law in not doing more.... In my opinion, having regard to the way the case was presented to him, the Senior Commissioner did not make any error of law, let alone an error of law that would justify intervention on appeal.
92 Accordingly, the applicant's submissions are that the Court has a duty to deal with council's contentions and no more, so as to achieve a "just, quick and cheap" resolution of the issues. Considering that the council did in fact obtain leave for an amended SoFC and no mention of cl 31 was made in that application, it presumably did not consider it relevant at the time. Had such application been made, Mr Tomasetti submits there would be substantive grounds to oppose as follows:
a. The applicant would have sought particulars as to extent of the land contended to be on the ridgeline and the extent of land contended to be near the ridgeline;
b. Retained surveyors to demonstrate that there is no 'ridgeline' within the meaning of cl 31 in stage 1 of the subdivision.
c. Called town planning evidence to say that there is no 'ridgeline' within the meaning of cl 31 in stage 1 of the subdivision.
d. Tendered photographs (which are not in evidence) in aid of its submission concerning cl 31.
e. Taken the Court on the site inspection more carefully over this part of the land;
f. Subpoenaed Council files and records to show that when approving development south of the subject land, including houses and access roads, it did not apply cl. 31 to those applications;
g. Taken the Court to other locations in Byron Shire to show that the cause is applied by Council to only major prominent topographical ridgeline formations and not to minor changes in grade in locations zoned for residential development and urban release. (In this regard we note the provisions of clause 6.2 of DCP 11 that requires roads are generally to actually follow ridgelines with avoidance of cut and fill);
h. Sought to justify with particularity why there was no reasonable alternative location for the road and in relation to Cl 31(a) that there will be adequate existing or proposed landscaping, trees or other vegetation which assist or are likely to assist in mitigating visual impact, and in relation to Cl 31(b) that the proposed building design elements, materials of construction and proposed colours will mitigate potential adverse visual impact, including the reflectivity of materials to be used; and
i. Taken greater care with use of language like "ridge" and "ridgeline" in the proceedings having regard to that term in cl. 31 and the Applicant's position that this is not a ridgeline for the purposes of cl 31.
93 The reply also notes that the evidence of the respective experts did not raise cl 31 as a contention. It is therefore likely that the omission of cl 31 was not an oversight because the application of such clause would need to establish what:
"On or near" (whatever "near" means in context) any ridgeline (whatever a "ridgeline" means in context) no development is permitted even near a ridgeline. This may preclude any type of development including subdivision and residential development where the land is on or near any ridgeline. The cl. could be applied to sterilise vast tracts of land. It might be argued the land could not be used for any purpose other than grazing being the current use, even a backyard for a dwelling house.
A ridge is not a ridgeline. A ridgeline is a line of ridges. The Macquarie Dictionary defines "ridgeline" to mean "a long narrow elevation of land or a chain of hills or mountains".
There are many "ridgelines" in the Byron Bay topography. What constitutes a ridgeline for the purpose of clause 31 is a question of fact and degree. There is no such ridgeline present in this case within that description. There are many ridgelines surrounding the township of Mullumbimby where one may not wish to see development. The land identified by Mr Seton on which the road accessing lots 25 - 31 is located is not one of them.
Exh. 3 shows the contours of the land in the location of the access road. It is clear that at the end of Tuckeroo Avenue is a knoll - "a small rounded hill". See Macquarie Dictionary at p.1053. A knoll is not a ridgeline. The land then dips and flattens and begins to rise again west of the paper road extension of Clays Road. There is no ridgeline in the vicinity of the new road access.
94 Insofar as Mr Tomasetti referred to several other cases, I am satisfied that the parties have not specifically addressed this cl 31 provision. However, it is apparent to me that the form and scale of the development adjacent to the southern boundary, which is the higher part of the site, is a significant issue. The planners and other experts have dealt with the relative merits of the proposed development pursuant to the provisions of DCP 11 and DCP - Mullumbimby, resulting in opposing opinions on the acceptability of the proposal in this area.
95 Apart from this, there was an awareness by the applicant of the provisions of cl 31, which acknowledged in the SEE as follows:
Clause 31 - Development on Ridgetops: Dwelling house locations are not intended to be on or near the ridgeline. The ridgeline in the subject locality is taken up by the proposed access road (Tuckeroo Ave). This road is intended to be heavily landscaped (see Exhibit 2.4). Further, the visual catchment of the site in the foreground and middleground viewing distance is negligible. Accordingly, no special controls, other than that provided for in Council's DCP are proposed in relation to building design elements, construction materials or colours. This is because visual impact is not anticipated to be significant.