6 The site is zoned residential 2(a1) - Residential "A1" Zone - in the Wingecarribee Local Environment Plan 1989 (the LEP) as are the other properties between the site and Church Street on the northern side on Governors Road. The land on the southern side of Governors Road is zoned Rural and is used for agricultural pursuits. The owner of this property, Mr McKay, gave evidence during the first site inspection. Although the site is therefore at a zone interface, I am satisfied that there is no impact on the adjacent property in the rural zone to the south that would require any special consideration of the type discussed in Seaside Property Developments Pty Ltd v Wyong Shire Council (2004) 136 LGERA 111, [2004] NSWLEC 117.
4 I adhere to my earlier descriptions and my observation concerning Seaside Property Developments. The issue of impact on the adjacent property in the rural zone to the south arising from this amended application is dealt with later in this decision.
5 In that judgment, I concluded that it is in was unacceptable for the reasons which I then discussed. Following a successful appeal pursuant to s 56A of the Land and Environment Court Act 1979 (see Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321), the matter was remitted to me to hear and determine in light of the appeal decision's conclusions.
The amended application
6 The application has now been significantly amended so that, effectively, I am dealing with a different development application in most respects. This course of action has arisen because both the applicant and Wingecarribee Shire Council (the council) agreed that it was in the interests of the parties and of the local community that the revised application which had been lodged with the council should be dealt with in these proceedings by amendment rather than requiring the parties to go to the time and expense of running fresh proceedings relating to the amendments.
7 A further site inspection was undertaken, for these proceedings, and additional evidence concerning the amended application was heard, informally, during the course of the site inspection from experts advising both the council and the applicant and from objectors.
8 The amendments to the application, essentially, a deal with two aspects of the earlier proposal about which I had made adverse findings. The amendments made in each of these respects constitute a significant and ameliorative modification of the design.
9 The first aspect relates to the development that is proposed to take place on the site. The original proposal involved the entirety of the development on the site being in close proximity to the access point to the site from Governors Street and close to the boundary with the property owned by Mr and Mrs Miller immediately to the west of the site. The proposal now envisages retention of the modest Colorbond shed near the entrance to the site within which are located the bore from which the water is to be extracted and the pump presently used for these purposes. In substitution for the other elements proposed to be near the entrance, the remainder of the development on the site (comprising a storage and operational shed and storage tanks described below) will be located at some 60 m or so from the boundary with the Miller property and some 70 m or so from the entrance to the site.
10 It is also proposed to be established a loop road within the site that will provide access to the operations and amenities building of modest dimensions (being approximately 6 m x 4 m) accompanied, on the side of this shed away from the Miller's property, by two outdoor stainless steel storage tanks within which the water is to be stored pending its loading into the road tanker vehicle for removal and bottling up off-site. Each of these tanks used to be some 2.5 m in diameter and some 11 m long.
11 As a consequence of discussions with Mr Miller during the course of the site inspection, the applicant has agreed that these tanks will be painted with a non-reflective finish and in a neutral colour. The long axis of these tanks is orientated, generally, in a fashion running perpendicular to the boundary with the Miller's property rather than across any line of sight from the Miller's house or property, generally (if such a sight line were to be available - which it is presently not, as discussed later).
12 The second major aspect of the amended application involves a complete change of approach to the works proposed in Governors Street.
13 The original application involved the complete reconstruction of Governors Street and the removal of the entirety of the vegetation along it. Instead of that complete reconstruction, the applicant now proposes a process of removing and replacing a maximum of 200 mm from the surface of Governors Street within the area is formed by the present wheel tracks and with no formed shoulders. The new surface will effectively replicate the present surface using crushed material and, in appropriate locations, will use additional materials such as geotextile cloth and root protection structures.
14 The surface of Governors Street will remain generally smooth but slightly textured, similar to the surface presently along the road and will do so in a fashion that does not require the removal of or interference with the root systems of any of the trees within the road reserve or on adjacent properties. The arboricultural conclusions concerning the works in Governors Street are discussed in more detail later.
15 In addition there may need to be excavation and reconstruction, up 600 mm deep for a maximum of 10 m (being 5 m outward from either side of the pipe) for each of the two culverts over drainage lines that cross Governors Street from north to south. This additional excavation and reconstruction will taper back from the maximum depth of 600 mm at its centre to the general 200 mm depth at the end of the maximum of 5 m from the centre point. However, Dr Martens, an engineering expert who gave evidence on behalf of the applicant, said that he did not think it likely that the full extent of this excavation in the vicinity of each culvert would be required.
The issues
16 The issues that are raised by the Council in these further proceedings are as follows:
o The sustainability of the proposed water extraction and possible impacts on Morton National Park;
o The impacts on vegetation and Governors Street and on adjacent properties;
o The impact on Governors Street and Jackmans Cottage (as a consequence of them being proposed to be listed as local heritage items in the new draft Local Environmental Plan);
o The adequacy or otherwise of the technical information concerning pollutant, stormwater and effluent disposal relating to the development on the site;
o The impact on the amenity of residents of Jackmans Cottage;
o The impact on the Miller property immediately to the west of the site; and
o Other new matters raised by the objectors.
The approach to be taken in considering the matter
17 I have considered how I should approach the (now amended) application, given that the applicant has amended the proposal to respond to some but not all of my adverse findings in my 2008 decision and the fact that the council is seeking to change the planning regime within which the application should be assessed. This changed planning regime arises is the consequence of a draft new Local Environmental Plan that is proposed to replace the current Local Environmental Plan applying at the time the original and the amended applications were lodged.
18 I have concluded that it would be appropriate for me to assess, initially, on the basis that is most advantageous to the council and that which poses the highest thresholds in the applicant. If the amended proposal were to be acceptable, as I have concluded it is, on that basis, it would be unnecessary to consider the proposal on any assessment basis less onerous for the applicant.
19 I have, therefore, approached my assessment on the basis that the weight to be given to the draft Local Environmental Plan should be significant and potentially determinative. Indeed, as will be obvious from what follows in later discussion on this decision, I am of the view that the present application, had it been lodged initially in this form and assessed on the basis of either Local Environmental Plan (both the draft as presently proposed and the current operational Local Environmental Plan), the application would have required to have been assessed as acceptable.
Water extraction
20 During the hearings leading up to my 2008 decision, I had the advantage of uncontradicted expert evidence from Mr Lane, a hydrogeologist, who was the single party's expert on these issues. Mr Lane's evidence has been carried forward as evidence in these remitted proceedings.
21 I have received evidence, by a letter tendered by the council, from the Department of Environment and Climate Change expressing concerns about the water extraction proposed to be undertaken and proposing a range of monitoring conditions to be attached to any development consent which might follow from these proceedings. However, there is no expert evidence, of any nature, provided in support of these concerns. Although it is also not expert evidence, the council received a letter from the Department of Water & Energy (dated 18 November 2008) indicating that the applicant's water extraction licence would be renewed and it was that Departments view:
.. that the groundwater extraction authorised by the Licence, up to 50ML/yr, is hydrogeologically and environmentally sustainable and that there are sufficient monitoring and reporting conditions on the Licence to safeguard such extraction.
22 As a consequence, there is no evidentiary basis upon which I could depart from the conclusion that I reached in my earlier decision. I must, necessarily, therefore, conclude that this issue does not provide any basis upon which I could refuse to present application nor could it make any contribution to warranting refusal.
23 In addition, as earlier noted, the Department of Environment and Climate Change has proposed that a wide-ranging set of monitoring and other conditions be imposed. None of these conditions are supported by Mr Lane's evidence in the earlier proceedings. The Department, although proposing these conditions, has not provided any technical reasons why the requirements are necessary. I therefore have no evidentiary basis upon which I could impose the conditions sought by the Department. I therefore decline to impose them.
The bottled water industry
24 Although a number of written objections to the amended proposal raised the question of the sustainability or otherwise of the bottled water industry, and provided some further broader commentary on this point, these submissions do not persuade me that I have any basis upon which I could depart from my conclusions on this topic in my 2008 decision. That conclusion was that it would not be appropriate, in these proceedings, to require the applicant to provide justification for the ecological sustainability of the bottle water industry generally.
25 There is also nothing in the present amended application that would cause me to depart from the conclusion I reached in 2008, on the basis of the evidence that was then before me (this evidence having been carried forward into these proceedings). As I indicated in my earlier decision, there is nothing of an ecological sustainability nature, specific to this application, in its amended form, as was the case with the original proposal, that would cause me to refuse the application on that basis or that would contribute to the warranting of refusal.
Reconstruction of Governors Street
26 I walked the length of Governors Street with Ms Hopwood and Mr D'hondt, the arborists for the applicant and the council respectively. During the course of this inspection, in addition to giving informal evidence concerning impacts on trees within the road reserve and on adjacent properties, these experts discussed special treatments proposed by the applicant at the eastern and western ends Governors Street (that is at the intersection of Governors Street with Church Street to the west and at the entrance to the site at the eastern end of the formed element of Governors Street). Each of these treatments at the ends of Governors Street is discussed separately.
27 With respect to the now proposed method of reconstruction along the line of Governors Street, the arborists agreed that, provided appropriate conditions requiring that excavation in the root protection zones of any of the trees be undertaken by an air knife or other sensitive excavation technique (in order to ensure that no of any significance roots are severed) and that appropriate root shielding was installed (to provide protection to any significant roots - the relevant diameter being agreed by them as being the appropriate root diameter to be protected varying depending on the location of the relevant tree) as part of the reconstruction of the road surface, there is no basis upon which I could have any concern about the adverse impacts on those trees.
28 Similarly, during the course of walking the length of Governors Street, the question of the extent of and the necessity for canopy pruning to ensure that there was no inadvertent damage to trees caused by the applicant's trucks using the road was discussed. Dr Martens advised that it would be possible to adjust the location of the 3 m wide reconstructed element of Governors Street so that the line of formed road would, as it were, become slightly more meandering than is presently the position. Such alignment redesign would result in the new carriageway being located so as to minimise the need for any canopy pruning to be undertaken to any of the existing trees.
29 As a consequence of this, the position was reached, as I understand it, that no branches of significance would need to be removed from any of the trees. Only minor initial and subsequent maintenance pruning would be necessary to ensure that the existing vegetation could be kept clear of water tankers using the road to access the applicant's proposed facility.
30 As a result, there will be no significant visual or arboreal impact along the length of Governors Street. The applicant will be required to maintain the new road pavement but it will visually replicate that which is presently seen as one walks or drives along Governors Street - although it is likely not to be as muddy underfoot as is the experience at the present time. There will still be overhanging vegetation and the pruning undertaken will not cause any impact on the trees or any perceptible change to the present visual experience. Overall, any person undertaking passage along the main part of Governors Street, whether that passage be on foot or by vehicle, is unlikely to notice any perceptible change from what is presently observed when doing so.
31 In light of these agreements between the arborists, the works along the main length of Governors Street do not provide any basis to refuse the application or make any contribution to warranting its refusal.
Reconstruction of the intersection of Governors Street and Church Street
32 With respect to the intersection of Governors Street and Church Street, the initial modifications to the application caused Mr D'hondt to be concerned about the survival of a significant tree in the road reserve on the north-eastern corner of the intersection. After Dr Martens considered the location of the proposed reconstruction of the intersection, he concluded that it would be possible to move the reconstructed element of this intersection of some 2 m or so further to the south. The applicant agreed to this alteration.
33 Mr D'hondt and Ms Hopwood agreed that, if that were to occur and similar construction requirements using an air knife or other sensitive excavation technique and root protection were to be required for the reconstruction of the intersection, there was unlikely to be any significant adverse impacts on the tree.
34 The consequence of there being no impact on this tree meant that there was no follow-on adverse impact on the adjoining trees further to the north growing in the road reserve or on the adjacent private property.
35 Mr D'hondt's initial concern had been that, had the extent of the impact of the reconstruction necessitated its removal, it would have been necessary also to remove other trees further to the north because the removal would have resulted in exposing these trees to greater adverse wind impacts, requiring their removal.
36 All of those matters are now resolved by the agreement concerning the redesign of the intersection; the tree protection measures during construction agreed to by the arborists; and the moving of the reconstruction modestly further to the south.
37 The arborists have also accepted that such a movement of the reconstruction to the south would not have any adverse impact on a tree in the Church Street road reserve further to south. As a consequence, there are no impacts arising from the proposed reconstruction of this intersection on any trees.
38 In light of the applicant's agreement to move the reconstruction of the intersection modestly to the south and the agreement between the arborists, the works proposed that this intersection do not provide any basis to refuse the application or make any contribution to warranting its refusal.
Construction at the entrance to the site
39 At the eastern end of the Governors Street, immediately outside the entrance to the site, there are located two substantial eucalypts. Mr D'hondt expressed the view that, for the western of them, any carrying out of work within the root protection zone would require the removal of the tree because of its age, extent of the deadwood in its canopy, a cavity in its base and its general poor health.
40 Mr D'hondt also had significant reservations about the possible impact of the carrying out work in the root protection zone of the second of these eucalypts as this tree has a significant lean to the north across the unformed part of Governors Street with part of its outer canopy overhanging the boundary of the site.
41 Dr Martens gave evidence that the road pavement renewal proposed to be carried out at this point could be carried out without any excavation. Modification of the works would enable it to be carried out by the sweeping off of any vegetative detritus and any loose stones or soil; the use of geotextile cloth and other specialist materials and simply laying the new road surface on top of the existing surface (with no excavation to be undertaken in the critical root zone of these trees).
42 Ms Hopwood and Mr D'hondt agreed that, if this construction methodology were to be adopted, there would be no impact on this tree and its ageing process would simply continue. They agreed that a degree of deadwood removal from the canopy would be prudent for public safety reasons but that that necessity arose as a general proposition of tree management rather than particularly as a consequence of this application.
43 They also agreed that there would also be no adverse impact on the second of the eucalypts if this revised construction methodology were adopted as agreed to by the applicant.
44 In light of the agreement between the arborists concerning the proposed works at the entrance to the site from Governors Street, the proposed works at the eastern end of the formed part of Governors Street do not provide any basis to refuse the application or make any contribution to warranting its refusal.
45 The cumulative consequence is that the extent of the proposed reconstruction of the unsealed 3 m wide section of Governors Street required to permit the passage of the tankers to be used for water removal is acceptable. Specifically, I am satisfied that there is no unacceptable arboricultural impact of this reconstruction commencing with the reconstruction of the intersection with Church Street and culminating with the reconstruction of the entrance to the site.
Visual impact
46 I now turn to the question of whether or not there is any visual impact, in a general sense, arising from the reconstruction of Governors Street; the construction of the loop road; and/or the proposed erection of the facilities on the site that would warrant refusal of the proposal or contribute to warranting its refusal.
47 I have identified, on the basis of Dr Martens' evidence as earlier set out, the nature of the reconstructed pavement that will be established within Governors Street. Except for a strip some 15 m into Governors Street from Church Street, this will be, effectively, virtually visually identical with that which is currently able to be seen as a one looks or drives along Governors Street. Although Governors Street will be better maintained and will have fewer potholes and less muddiness, nonetheless the general character of Governors Street will remain that of a meandering and vegetated country laneway and this general character will be maintained virtually without alteration.
48 Whilst a regular user of Governors Street may appreciate that it has been resurfaced and no longer has the same number of muddy potholes, nonetheless its broad characteristics will not have changed in any significant fashion.
49 As a consequence, I am satisfied that there is no visual alteration to the formed part of Governors Street that would warrant refusal of the application or could contribute to warranting refusal of the application.
50 I draw this conclusion not merely concerning casual users of Governors Street but also for any regular users. However, I readily acknowledge that those who are completely opposed to the applicant's proposal may have their experience of Governors Street coloured by their knowledge that the applicant's proposal has been approved. At the eastern end of the made portion of Governors Street, these objectors will view the applicant's facilities with disapproval but this would be as a consequence of their opinion of the desirability of the applicant's proposal rather than as an effect occasioned by the actual changes to Governors Street itself.
51 The tarsealing of a portion at the western end of the Governors Street, at its intersection with Church Street, is but a small adverse impact on the visual character of Governors Street and certainly not one which would warrant refusal although it could make a minor contribution to refusal had there been sufficient other adverse impacts to warrant refusal when considered in a cumulative sense.
52 The question of visual impact for bushwalkers using the unformed portion of Governors Street (extending across the eastern frontage to the site beyond its entrance and further to the east past other properties not owned by the applicant) was raised by the objectors to the proposal.
53 At the eastern end, taking the council's and the objectors' evidence at its highest, the unformed port of Governors Street is also used, on a regular basis, for casual bushwalking.
54 Taking this evidence at its highest on the basis given by the objectors (and setting aside, in its entirety, the informal survey information provided by the applicant concerning the use of the unformed portion of Governors Street), it is clear that, from a little to the west of the entrance to the site to a point some 100 m or so to the east of the entrance to the site, a person walking along Governors Street to the end of the made portion and then continuing to walk beyond this to link with the south-western end of Panorama Street will be able to view the loop road and structures located on the applicant's land.
55 As previously noted, those structures will comprise the loop road and its associated drainage structures (these will be, essentially, only the spreaders at the southern end of the pipe under the loop road and, somewhat further to the east, at the end of the drainage berms); the existing small shed; the proposed new amenities block; and the two holding tanks (that will be, as earlier noted, in neutral and non-reflective colours).
56 A security fence (discussed further regarding Mr Miller's property) will surround this. There is proposed to be a deal of vegetative screening. The fence is to be of steel mesh with the colour of its plastic coating to be as visually unobtrusive as possible and, if sufficiently intensely planted on both sides, will, in my view be imperceptible. Landscaping on both sides of the fence is to be required to ensure that this is the position.
57 The structures that will be visible to a passing walker will be alien in their natural setting. Their colours, however, will be sympathetic. Although, in a sense, they will be industrial, the structures will be to a degree industrial in the same sense of that a range of agricultural structures can also be seen as industrial in a natural setting.
58 I accept that, for those who object to the proposal, the structures will constitute an alien and jarring element of this landscape of. To someone whose visual experience of them is not filtered through the prism of objection to the proposal, they will, nonetheless, be an intrusion into a natural setting.
59 However, on the basis of a geotechnical report provided by the applicant (prepared some considerable time ago at a time when a possible residential subdivision of the site was being considered), the location of the present proposed facilities is, generally speaking, in the same position where a rural residence could be located at the end of driveway access from Governors Street. Further, the types of the buildings now proposed are not inconsistent with those that might be expected on a rural residential property. Such a residence would also provide an intrusion into the natural setting of a different nature - but an intrusion nonetheless.
60 Although the nature of the intrusion of the applicant's proposal into this setting is different and, at its highest in the council's and objectors' positions, more intrusive because of its industrial nature than a residence would be, taking this impact at its highest, such additional visual impact can only be regarded as minor. Again taking the council's and objectors' case at its highest, this impact would only make a very minor contribution to any consideration of refusal and would certainly not provide a basis for refusal in itself.
Impact on proposed heritage items
61 As earlier noted, the draft local environmental plan nominates Jackmans Cottage and Governors Street as items of local heritage. As a consequence, it is necessary to consider whether there is any particular impact on either of these items which would warrant refusal or contribute to the warranting of refusal.
62 I have earlier discussed, extensively, the reconstruction of Governors Street and concluded that, save for a very minor visual impact caused by the reconstruction of the intersection with Church Street, there will be no perceptible impact on Governors Street. Indeed, in some respects, the proposed reconstruction of Governors Street, given the protective measures to be undertaken whilst this occurs, is no more than might ordinarily be expected for the maintenance of such a thoroughfare but carried out in a far more sensitive fashion than might ordinarily be expected from a council road maintenance program. The canopy pruning, to permit the passage of the tanker trucks, will be imperceptible. In all this, I am satisfied that there can be no relevant impact on the heritage value of Governors Street itself.
63 With respect to Jackmans Cottage, vibration and noise expert evidence given in the earlier proceedings stands unchallenged in these proceedings. Any conditions of consent will require, if the concurrence of the owner of Jackmans Cottage is given, appropriate monitoring of the fabric of the cottage. If such consent is not given, monitoring at the closest possible location in the public domain will be required. On the basis of this evidence, I could not conclude that there would be any physical interference with the fabric of this proposed heritage item.
64 The agreement of the arborists concerning the works to be undertaken in the root protection zones of the various trees in the vicinity of Jackmans Cottage together with the agreement by Dr Martens to a greater degree of meandering of the path of the road than is presently the case (but a meandering of only modest departure from the present path of the road way) means that there will be no loss of trees in the vicinity of Jackmans Cottage whereas, in the earlier proposal, there would have been significant alterations to the vegetation pattern and outlook from the cottage. There is, therefore, no visual impact on this proposed heritage item from the reconstruction works themselves.
65 The ambience of Jackmans Cottage will be impacted solely by the passage, on four occasions each weekday, of a comparatively slow moving tanker truck. Two of those movements will be un-laden and two of them laden. This, I accept, will be a very minor change in the ambience of Jackmans Cottage. It will not, however, in my view, constitute an impact of any significance on the heritage value of this proposed heritage item. Nor will these truck movements constitute such any general adverse impact on the occupants of Jackmans Cottage. A similar position applies to the other residences between Jackmans Cottage and Church Street. If I be wrong in reaching this conclusion, any such impact is of an extremely minor nature and would certainly not warrant refusal of the application nor could it provide any contribution of significance to the warranting of refusal of the application.