Turner Contracting Pty Ltd v Tweed Shire Council

Decision: In proceedings 2023/285328, the Court orders that:
(1) The appeal is dismissed.
(2) Development application DA 23/0302 seeking consent for a long term caravan park, associated infrastructure work, earthworks, and access arrangements from 1126 Pottsville Road, Pottsville (Lot 2 DP 815370) is determined by way of refusal.
In proceedings 2024/188426, the Court orders that:
(1) The appeal is dismissed
(2) The section 68 application lodged with Tweed Shire Council on 18 March 2024 seeking an activity approval for water supply and sewer supply works to support development at 1126 Pottsville Road, Pottsville (Lot 2 DP 815370) is determined by way of refusal
(3) Exhibits are returned with the exception of A, B, E, F, 2, 12.

Catchwords: DEVELOPMENT APPLICATION – development application for a long term Caravan park and associated infrastructure – concurrent application for water and sewer works – whether the development is characterised as development for the purpose of a manufactured home estate and therefore prohibited – whether the proposal is likely to have a significant and unacceptable impact on the local populations of koala – whether there are adequate arrangements for the provision of sewer services – appeal dismissed

Legislation Cited: Biodiversity Conservation Act 2016, ss 1.6, 7.2, 7.3, 7.7, 7.13
Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024
Environmental Planning and Assessment Act 1979, ss 4.12, 4.13, 4.15
Environmental Protection and Biodiversity Conservation Act
Land and Environment Court Act 1979, s 34
Local Government Act 1993, ss 68, 176
Roads Act 1993, s 68
Water Management Act 2000, s 292
Biodiversity Conservation Regulations 2017, cll 7.1, 7.2, 7.4,
Environmental Protection (Wetlands and Littoral Rainforests)
Georges River Local Environmental Plan 2021, cl 6.9
Local Government (General) Regulation 2021, cl 15
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cl 28
State Environmental Planning Policy (Koala Habitat Protection) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
Tweed Development Control Plan 2008
Tweed Local Environmental Plan 2000
Tweed Local Environmental Plan 2014, cll 7.10, 1.3

Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
Chamwell Pty Ltd v Strathfield Council (2007) 159 LGERA 400; [2007] NSWLEC 114
CK Design Pty Ltd v Penrith City Council (no 2) [2022] NSWLEC 97
Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160
Georges River Council v Eskander [2024] NSWLEC 98
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110
Planners North v Ballina Shire Council [2021] NSWLEC 120
Shire of Perth v O'Keefe (1964) 110 CLR 529

Texts Cited: Tweed Coast Comprehensive Koala Plan of Management, 2020

Category: Principal judgment

Parties: Turner Contracting Pty Ltd (Applicant)
Tweed Shire Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
T Howard (Respondent)
Solicitors:
Mills Oakley (Applicant)
Shaw Reynolds (Respondent)

File Number(s): 2023/285328
2024/188426

Publication restriction: Nil

JUDGMENT

Nature of the appeal

1. COMMISSIONER: This judgment relates to two proceedings which were heard together as they relate to applications for consent to facilitate a single development. The development is for a caravan park and is proposed at 1126 Pottsville Road, Pottsville (legally described as Lot 2 DP 815370). Those proceedings are:

2. Class 1 proceedings number 2023/0285328 which relates to a development application DA 23/0302. That development application seeks consent pursuant to s 4.12 of the Environmental Planning and Assessment Act 1979 (EPA Act); and

3. Class 2 proceedings number 2024/00188426 which relates to an application pursuant to s 68 of the Local Government Act 1993 (LG Act) for water supply and sewer works.

4. These applications are further particularised below. On 21 June 2024 the Registrar made orders that both proceedings were to run and be heard together with evidence in one proceeding to be taken as evidence in all proceedings.

The Development Application

3. On 7 June 2023, Turner Contracting Pty Ltd (the Applicant) lodged a development application with Tweed Shire Council (the Respondent). The development application sought consent for a long-term Caravan Park including associated infrastructure works and access arrangements from Pottsville Road.

4. On the 7 September 2023 the Applicant lodged an appeal to the Court against deemed refusal of the development application by the Respondent. A conciliation conference was held on 3 April 2024 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The parties were unable to reach an agreement at or following the conciliation. The conciliation conference was terminated, and the matter was listed for hearing.

5. The appropriate characterisation of the development proposed by the development application is the subject of dispute between the parties with the Respondent arguing that the development application is development for the purposes of a manufactured home estate (MHE) not a caravan park. The characterisation of the development is central to whether the development is permissible with consent in the zone.

6. As amended, the development application seeks consent for:

7. The creation of 74 sites, 72 sites for manufactured homes (long term sites) and two caravan (short term sites);

8. The use of the site as a caravan park;

9. Support facilities including a reception building including an office, a kitchen, recreation lounge area, Managers Residence, toilets and laundry facilities;

10. Recreational facilities including a bowling pitch, pool, spa and screened BBQ area;

11. Civil works including earthworks, retaining structures, drainage, internal road construction and visitor car parking spaces;

12. A flood warning system;

13. Landscaped grounds, a managed koala corridor, and works detailed in both the Koala and Habitat Restoration Plan and the Vegetation and Fauna Management Plans.

14. Road works within Pottsville Road, including an application under s68 of the Roads Act 1993.

The s 68 Application

7. The second matter is an appeal by the Applicant under s 176(1) of the LG Act in class 2 of the Court’s jurisdiction against the deemed refusal by Tweed Shire Council of their application to carry out water supply and sewerage works pursuant to s 68 of the LG Act (the s 68 Application).

8. As amended, the s 68 Application seeks consent for:

9. A new sewer connection to the existing sewer main at the corner of Seabreeze Boulevarde and Ballina Street.

10. A new water connection to the existing water infrastructure in the road reserve of Pottsville Road.

11. Following the conciliation and the process of joint expert reporting the development application and s68 application were both amended, including during the hearing. As relevant, further joint conferencing and expert evidence was prepared responsive to the amended applications.

12. The Applicant was granted to leave to amend their development application a number of times throughout the proceedings, and the Respondent was granted leave to amend their Statement of Facts and Contentions (SOFC). This judgment is responsive to the amended development application and the final SOFC in the proceedings.

Issues

11. At the hearing the Respondent maintains that the development application, as amended, should be refused for the following seven reasons.

12. The proposed development is characterised as a development which is prohibited under Tweed Local Environmental Plan 2014 (LEP 2014),

13. Whether the proposed development is likely to have significant and unacceptable impacts on the local population of koalas. Further, a Biodiversity Development Assessment Report (BDAR) has not been prepared as required by s 7.2 of the Biodiversity Conservation Act 2016 (BC Act).

14. That the sewer and water services essential for the development proposed are not available, nor are adequate arrangements in place to make them available when required. The precondition at cl 7.10 of LEP 2014 is not satisfied.

15. That the proposed development will have unacceptable traffic impacts which compromise the safe and ongoing operation of Pottsville Road, thereby failing to satisfy the precondition at s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI).

16. The site is unsuitable for the proposed development and is antipathetic to the objectives of the RU2 Rural Landscape zone,

17. The proposal will have an unacceptable impact on the ecological values of the site and the adjoining coastal wetland,

18. That the proposed development does not satisfactorily balance the requirements of bushfire protection and on the other hand the need to preserve the ecological values of the site and the adjoining coastal wetland.

19. At the hearing the Respondent maintains the s 68 Application warrants refusal on the basis that:

20. The Applicant does not have consent from Tweed Shire Council to connect to the public sewer system as to do so would increase the risk of regulatory breaches, unacceptable environmental impacts and adverse impacts on service standards.

21. There is no sewer capacity in the public sewer system.

Outcome of the appeal

13. For the reasons set out in the remainder of the judgment, and summarised below, I find that the development is permissible, but that development consent should not be granted to the development. For the reasons detailed in the body of the judgment I find:

14. Development application:

15. The proposed development is characterised as a caravan park, a development which is permitted with consent on land zoned RU2 Rural Landscape under LEP 2014,

16. that the precondition to consent in cl 7.10 ‘Essential Services’ of LEP 2014 is not met as I am unable to be satisfied that the development application proposes adequate arrangements for the disposal and management of sewerage. As such, there is no power to grant consent to the development application and it must be determined by way of refusal.

17. That the proposed development is likely to have unacceptable impacts on the local population of koalas. I am satisfied that the development will have the following detrimental impacts:

(a) Will displace the current open paddock environment of the site, which the experts agree are utilised by koalas, with a narrow corridor to the east of the site. That based on the preferred evidence of Mr Garvey, the proposed corridor is not of adequate width (less than 30m) to be functional. (b) The civil works proposed across the site (retaining walls and mounds) will impede koala movement, (c) The development itself will introduce risks to the koala specified by the Office of Environment and Heritage (OEH) as posing threats to the koala listed in the final determination namely, a reduction in habitat and impacts on movement between populations: NSW Threatened Species Scientific Committee, Final Determination, 20/05/2022 . Namely, the loss modification and fragmentation of habitat, risk of vehicle strike through the introduction of the caravan park and MHE sites, and the reduction in connectivity between the Pottsville and Black Rock koala populations due to the inadequate corridor functionality.

4. Further, the development varies the Tweed Coast Comprehensive Koala Plan of Management (TCCKPoM) in circumstances where the local population is vulnerable, and I find that the alternative proposed does not adequately mitigate the likely impacts of the proposed development on the local population of koalas.

5. Section 68 Application

6. That the application warrants refusal as there is no available sewer capacity at peak times to service the sewer loads generated by the development. To allow connection in those circumstances is not consistent with the maters for consideration listed at cl 15 of the Local Government (General) Regulation 2021 (LG Reg).

7. It follows from the preceding that this judgment does not make findings on the remaining contentions raised by the Respondent. This is for two reasons. Firstly, I have found that the development should not be approved for the reasons detailed in the preceding. Given the importance of these matters I am satisfied that these findings are sufficient to dispose of the proceedings. Secondly, any comments I may make on the remaining contentions would be of no benefit to the parties, because to address the concerns that support the refusal of the application will, in my assessment, require a significant redesign of the proposed development making any comments on the remaining matters redundant.

Experts

17. The Court was assisted by the following experts who undertook joint conferencing on the issues in dispute and prepared joint reports. All the listed experts were called for cross examination and oral evidence.

18. Town planning and social impact: Judith Stubbs and Simon Halcrow for the Applicant and Jeremy Swan for the Respondent,

19. Flooding: David Niven for the Applicant and Daniel Martens for the Respondent,

20. Traffic: Tom Steal for the Applicant and Paul Corbett for the Respondent,

21. Ecology: Adam McArthur for the Applicant and Nathan Garvey for the Respondent,

22. Water and Sewer services: Joel Wilson and Grant Halcrow for the Applicant and Terrence Seymour for the Respondent,

23. Ground water, surface water and civil engineering: Chris Anderson and Grant Halcrow for the Applicant and Daniel Martens for the Respondent,

24. Bushfire: Melanie Jackson for the Applicant and Stuart McMonnies for the Respondent,

25. Mosquito and biting midge: Darryl McGinn for the Applicant and Cameron Webb for the Respondent,

26. Aboriginal cultural heritage: Timothy Robbins for the Applicant and Susan McIntyre Tamwoy for the Respondent.

27. I note that the Respondent’s contentions in relation to mosquito impacts and management arising from the development were resolved by expert evidence, provision of additional information including a Biting Insect Management Plan and agreed conditions of consent.

The development is permissible.

19. The first contention pressed by the Council in relation to the Development Application is jurisdictional. The Council asserts that the proposed development is prohibited on the land.

20. The site of the proposed development is part zoned Rural Landscape zone (RU2) under LEP 2014 and part deferred matter. No development is proposed on the portion of the site which is a deferred matter under LEP 2014, and which is zoned 7(a) Environmental Protection (Wetlands and Littoral Rainforests) and zone 1(a) Rural under the Tweed Local Environmental Plan 2000: cl 1.3 of LEP 2014. All of the development for which consent is sought is on the portion of the land zoned RU2.

21. The land use table for the RU2 Rural Landscape zone is as follows:

Zone RU2 Rural Landscape

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land.

2 Permitted without consent

Environmental facilities; Environmental protection works; Extensive agriculture; Home occupations; Intensive plant agriculture

3 Permitted with consent

Agritourism; Airstrips; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Educational establishments; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Garden centres; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Hostels; Industrial retail outlets; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Jetties; Kiosks; Landscaping material supplies; Markets; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers’ dwellings; Signage; Timber yards; Transport depots; Truck depots; Turf farming; Veterinary hospitals; Water recreation structures; Water supply systems; Wharf or boating facilities

4 Prohibited

Any development not specified in item 2 or 3

22. In this form the zoning table provides that any nominate uses, not listed under 2 or 3, are prohibited. Further, the zoning table has the effect of prohibiting innominate uses as any development not specified is prohibited by the terms of clause 4 of the zone table.

23. A caravan park is a nominated permissible use in the RU2 zone under LEP 2014.

The relevant definitions.

24. A caravan park is defined under LEP 2014 as:

caravan park means an area of land, with access to communal amenities, used for the installation or placement of caravans, or caravans and other moveable dwellings, but does not include farm stay accommodation.

25. A ‘manufactured home’ is defined under LEP 2014 as:

manufactured home has the same meaning as in the Local Government Act 1993.

26. The meaning of the term manufactured home in the LG Act is:

manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling—

(a) that comprises one or more major sections, and

(b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013,

and includes any associated structures that form part of the dwelling.

27. A ‘moveable dwelling’ is defined under LEP 2014 as:

moveable dwelling has the same meaning as in the Local Government Act 1993.

Note.

The term is defined as follows—

moveable dwelling means—

(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b) a manufactured home, or

(c) any conveyance, structure or thing of a class or description prescribed by the regulations (under the Local Government Act 1993) for the purposes of this definition.

28. A manufactured home estate is defined in the LG Act as:

manufactured home estate means land on which manufactured homes are, or are to be, erected.

The Respondents argument

29. The Respondent argues that the proposed development is prohibited in the Rural Landscape zone (RU2) under the LEP 2014. Mr Howard outlines two positions in relation to this contention, a primary and secondary position to establish the development is prohibited.

30. The Respondent’s primary position is that the proposed development, properly characterised, is not development for the purpose of a caravan park. The Respondent contends that the proposed development is for the purpose of a ‘manufactured home estate’ which is an innominate prohibited use in the RU2 zone under LEP 2014. The Respondent submits that a manufactured home estate is a type of ‘multi dwelling housing’ defined in LEP 2014, which is in turn a species of the genus ‘residential accommodation’.

31. Applying the Respondent’s primary argument to the format of the preceding land use table, the characterisation of the proposed development as a manufactured home estate (as a type of multi dwelling housing and or residential accommodation), would result in it being a prohibited use. This is because this use is not listed in section 3 of the zoning table as a use permitted with consent.

32. Mr Howard prepared detailed written submissions to support this primary argument which can be summarised as follows:

33. The land use of caravan parks is a separate type of land use which is distinct from manufactured home estates. Such a distinction has historically, and is currently, drawn in the relevant planning instruments. It is an error to conflate the two land uses merely because a caravan park can include the presence of manufactured homes.

34. That the development of an area of land is not precluded from being characterised as being for the purpose of a caravan park merely because of the presence of ‘other moveable dwellings’, despite this term forming part of the definition of a caravan park. He argues:

‘It does not follow from the inclusion of these words that, provided there are two caravans on an area of land, the land use will then automatically be characterised as a caravan park, regardless of there being a predominance of manufactured homes proposed for that area of land, and regardless of the degree to which the manufactured homes are perceived to comprise the dominant purpose of the land.’

(Applicants written submissions dated 21 October 2024)

3. That the purpose of characterisation of a land use is to identify the character imparted on the land by the land use: Shire of Perth v O'Keefe (1964) 110 CLR 529 at [534]. (Shire of Perth)

4. A distinguishing feature of a manufactured home estate is that it is a contemporary form of medium density housing. A caravan park is not.

5. When consideration is given to the plans of the proposed development and the development of the site is considered as a whole, the character imparted to the land by the proposed development is that of a manufactured home estate. Notwithstanding the proposed inclusion of two caravans, which are token.

6. If unsuccessful in the primary submission on permissibility, the Respondent’s secondary position is that the characterisation of the Applicants development application is not uniform across the site. Namely, Mr Howard argues that if what is proposed for the smaller eastern portion of the site is characterised as development for the purposes of a caravan park, that does not apply to the remaining (western) portion of the site. Rather, the western portion of the site, which is the larger in area, should be characterised as development for the innominate prohibited purpose of manufactured home estate. Further, that the use of the western portion of the site as a manufactured home estate is not ancillary to, or subsumed within, the proposed use of the eastern portion of the site as a caravan park.

7. The Respondent submits the Court must refuse consent to the development application as the development application proposes development characterised as a prohibited use.

Applicants’ arguments

35. Ms Reid for the Applicant submits that the proposed development is properly characterised as a caravan park, which is a permissible use in the RU2 zone under LEP 2014.

36. Ms Reid also prepared detailed written submissions to support the above submission which can be summarised as follows:

37. The definition of ‘caravan park’ (extracted at [23]) is a long noun phrase. Namely it is a noun phrase that can be expanded with additional words or phrases (modifiers) to provide more information about the noun. In this definition she submits that the noun in the definition is “caravan park means an area of land”.

38. Applying the approach at (1) Ms Reid submits that:

(a) The primary noun in the definition describes a caravan park as a place, simply an area of land. This requirement is met by the proposed development application as the proposed ‘caravan park’ will comprise the area of the site zoned RU2 under LEP 2014. (b) The first modifier contained in the definition is that the area of land must have ‘access to communal facilities’. The proposed development application includes the construction of such communal facilities. (c) The second modifier is a composite phrase which provides two alternatives, namely that the ‘area of land’, with ‘access to communal facilities’ must be:

(i) Used for the installation of caravans, or (ii) Used for the installation of caravans and other moveable dwellings.

(d) The development application meets the second alternative provided in the definition. It proposes that the land will be used for the installation of caravans and other moveable dwellings. Ms Reid notes that there is no intent in the drafting to restrict the extent, placement or ratio of either the caravans or other moveable dwellings required to satisfy the definition. (e) Applying the definition of moveable dwellings in LEP 2014, caravan is a species of the genus of moveable dwellings. As is a manufactured home. Therefore, the second modifier in effect says: the ‘area of land’, with ‘access to communal facilities’ must be used for the installation of caravans and manufactured homes. (f) There is no factual basis in the current application that the restriction in the definition, on the use of the site for farm stay accommodation, applies.

37. Given the preceding reasoning in circumstances Ms Reid submits that where there is a clear definition of ‘caravan park’ in LEP 2014, there is no warrant to read it down or add words to require the site to predominantly contain caravans.

38. Further, applying the reasoning in Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [32] (Pet Carriers), if the proposed development may be characterised as the nominate permissible purpose of caravan park there is no need to make further inquiry as to whether the proposal may also be characterised as an innominate prohibited purpose such as a manufactured home estate.

Findings

39. In planning law, a use must be for a purpose: Shire of Perth; Chamwell Pty Ltd v Strathfield Council (2007) 159 LGERA 400; [2007] NSWLEC 114 at [27]. The focus of this enquiry is whether the proposed development is within a nominate or innominate purpose:. (Pet Carriers)

40. The task of correctly categorising the purpose, or purposes, of a particular use or development application is a threshold question in determining whether a particular development application is capable of lawful determination. If the Court accepts the submission of the Respondent, that the development proposed is for the purposes of a caravan park, the current development application is an ineffective application, and the Court would have no power to approve the development sought (s 4.13 of the EPA Act).

41. In addition to the cases referenced by the parties, Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 (‘Friends of Pryor Park’) is relevant. The approach outlined in Friends of Pryor Park is that once a determination of permissibility is made by categorising a purpose, the fact that it may also fall within another purpose is legally irrelevant. The relevant passage of the decision is extracted below (at page 5):

“The respondent’s competing argument is that, where as in the present case, the proposed development falls within the permissible purpose of community facilities, development consent may be legally granted to the proposed development of that purpose and the fact that the development also falls within another purpose, namely childcare centre, is legally irrelevant to the validity of the development consent granted for the permissible purpose.

…

In my judgement the Respondent’s argument is correct and is clearly to be preferred to the Applicant’s competing argument.”

42. The decision of Preston CJ in Pet Carriers at [32] adopts this approach and states:

“In this situation, the question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category. The latter task may be required when determining whether a development is an existing use under the EPA Act: see C B Investments Pty Ltd v Colo Shire Council at 280. But it is not the task to be undertaken when determining whether development is for a purpose that may be carried out with consent.”

43. Further in Ballina v Palm Lake Preston CJ states at [66]:

“66 I find that the Council has not established that the Commissioner erred in characterising the access way as being a road in either of the two ways alleged. The Commissioner’s approach to determine first whether the access way could be characterised as being for the nominate permissible development of road (a development specified in item 3 of the land use table for the RU2 Zone) was correct. If the accessway could be characterised as being for the nominate permissible development of road, it would be permissible, irrespective of whether it could also be characterised as being a seniors housing development.”

44. I have adopted the approach detailed in the preceding judgments in these proceedings and find as follows:

45. The task of characterisation of the purpose of the development forms part of the assessment and determination of the development application. The purpose of a development is objective in the sense that it is the end which is seen to be served by the carrying out of the development: Shire of Perth at 534. As noted in Pet Carriers the focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument.

46. Accepting that the characterisation of the proposed development is to be answered by reference to the specific terms of the environmental planning instruments and the land use table for the RU2 zone. In these proceedings the relevant enquiry is whether the proposed development is within a purpose of development that may be carried out with development consent. That inquiry requires determining whether the purpose of the development falls within the purpose of 'caravan park’.

47. Applying the definition of caravan park, in context with the other definitions in LEP 2014, I am satisfied that the proposed development can be characterised as being for the nominated permissible use of ‘caravan park’. In my view the Respondent places too little weight on the fact that the definition of moveable dwelling, which forms part of the definition of ‘caravan park’, and under LEP 2014 includes the term manufactured home.

48. On this basis I prefer and adopt the submissions of Ms Reid at [35].

49. I find that the proposed development meets the definition of a ‘caravan park’ as defined in LEP 2014 as it is proposed that caravans and other moveable dwellings (manufactured homes) will be established on the site. It is therefore development for the purpose of a permissible use within the RU2 zone.

The proposed development is likely to have significant and unacceptable impacts on the local population of koalas

46. In this topic the parties are in dispute as to three key matters:

47. Firstly whether, within the meaning of s 7.2(1)(a) of the BC Act, the proposed development is likely to significantly affect the koala, a threatened species.

48. Secondly, whether the development application is required to be accompanied by a BDAR in circumstances where one has not been provided.

49. And finally, whether on merit the proposed development has unacceptable impacts on the local population of koalas and varies the TCCKPoM in circumstances where the local population is vulnerable and the alternative proposed in the development application does not adequately mitigate the likely impacts.

The relevant legislative provisions

47. The Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024 (Amending Act) came into force on 7 March 2025 and had the effect of amending the BC Act and the BC Regulation with no savings and transitional provisions. Importantly the Amending Act changed the operation of ss 7.2, 7.3, and 7.7 of the BC Act. As this amendment commenced during the proceedings, the new legislation applies and the development application is not finally determined: CK Design Pty Ltd v Penrith City Council (no 2) [2022] NSWLEC 97.

Whether the development is likely to significantly affect threatened species:

48. Section 1.6 of the BC Act defines a threatened species as a critically endangered species, an endangered species, or a vulnerable species listed in sch 1 of the BC Act. The koala is a ‘threatened species’ within the meaning of s 7.7(2) of the BC Act being listed as an endangered species in Part 2 of sch 1 of the BC Act.

49. Whether the development is likely to significantly affect threatened species is defined at s 7.2 of the BC Act. For the purposes of s 7.7(2) of the BC Act, s 7.2(1) defines when a development is likely to affect threatened species as:

(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if—

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b) the development exceeds the biodiversity offsets scheme threshold, or

(c) it is carried out in a declared area of outstanding biodiversity value.

50. Applying s 7.2(1) of the BC Act to the proposed development, the Respondent contends that it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in s 7.3(1), that being:

7.3 Test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats

(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats—

(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity—

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c) in relation to the habitat of a threatened species or ecological community—

(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

(2) The Minister may, by order published in the Gazette with the concurrence of the Planning Minister, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.

51. I note that applying s 7.3(d) of the BC Act, it is an agreed fact that the site is not in a declared area of outstanding biodiversity value.

Whether a BDAR is required:

52. Applying s 7.7(2) of the BC Act whether a development application is required to be accompanied by a BDAR is a jurisdictional fact, such that if one is required and is omitted from the development application, consent cannot be granted: Planners North v Ballina Shire Council [2021] NSWLEC 120 and [102].

53. The Respondent contends that the proposed development is likely to significantly affect the local population of koalas and that accordingly a BDAR is required to be prepared and included in the development application: s 7.2 of the BC Act.

Biodiversity offsets threshold:

54. Pursuant to cl 7.1 of the Biodiversity Conservation Regulations 2017 (BC Regulation) a development exceeds the Biodiversity Offset Scheme (BOS) threshold for the purposes of Part 7 of the BC Act if it is or involves:

(a) the clearing of native vegetation of an area declared by clause 7.2 as exceeding the threshold, or

(b) the clearing of native vegetation, or other action prescribed by clause 6.1, on land included on the Biodiversity Values Map published under clause 7.3.

55. Applying the relevant provisions of s 7.4 of the BC Act and cl 7.1 of the BC Regulation, the development does not exceed the biodiversity offsets scheme threshold as follows:

56. Pursuant to cl 7.4(1) of the BC Act, the BC Regulation at cl 7.2(2)(a) nominates a clearing threshold which, if met, means the development exceeds the biodiversity offset scheme, thus triggering the requirement at s 7.2(1)(b) of the BC Act. Applying this provision the relevant clearing threshold to the facts of this matter the relevant threshold is 1ha. The agreed evidence of the ecology experts is that the area proposed to be cleared by the development application is below the 1ha threshold.

57. Further, pursuant to cl 7.4(2) the BC Regulation at cl 7.1(b) states that the BOS is exceeded if the clearing of native vegetation, or other action prescribed by cl 6.1, on land included on the Biodiversity Values Map published under cl 7.3. It is an agreed submission of the parties that the development application does not involve such clearing and that the BOS threshold is not exceeded in this way.

Serious and Irreversible Impact

56. Pursuant to s 7.16 of the BC Act serious and irreversible impacts (SAII) on biodiversity values of a proposed development are those impacts that would remain after the measures proposed to be taken to avoid or minimise impacts are taken. The applicable biodiversity values are those determined by applying s 1.5 of the BC Act:

1.5 Biodiversity and biodiversity values for purposes of Act

(1) For the purposes of this Act, biodiversity is the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.

(2) For the purposes of this Act, biodiversity values are the following biodiversity values—

(a) vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,

(b) habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,

(c) biodiversity values, or biodiversity-related values, prescribed by the regulations..

57. Pursuant to cl 1.4 ‘Additional biodiversity values (section 1.5 of the Act)’ of BC Regulation the following are prescribed as additional biodiversity values for the purpose of s 7.16 of the BC Act:

(a) threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,

(b) vegetation abundance—being the occurrence and abundance of vegetation at a particular site,

(c) habitat connectivity—being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range,

(d) threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,

(e) flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,

(f) water sustainability—being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.

58. In these proceedings it is not contended by the Respondent that the proposed development will have a SAII on the biodiversity values: s 7.16(2) of the BC Act

Whether the impacts of the development are reasonable on merit.

59. Pursuant to s 7.13(2) of BC Act the consent authority may (but is not required to) further consider under s 4.15(1) of the EPA Act the likely impacts of the proposed development on biodiversity values as part of the overall assessment of the development application.

60. On merit the Respondent argues that the proposed development is likely to have an unacceptable impact on the local koala population for four key reasons:

(a) Potential impacts to the koala arising from the development are unacceptable, including the removal of Preferred Koala Food Trees (PKFT) and preferred koala habitat. These impacts are more material in the context of the limited remaining local population of koalas; (b) The fragmentation of a critical movement corridor for koalas by the implementation of the development will restrict species movement in the Black Rock and Pottsville Koala Activity Precincts (KAP) affecting genetic diversity and the long term survival in the population. These impacts have not been mitigated. (c) The development application varies the TCCKPoM and Section A19 of Tweed Development Control Plan 2008 (DCP 2008) in circumstances where the species is vulnerable in the local area, and (d) the proposed mitigation measures, including replanting of koala food trees and creation of a new corridor within the site, do not mitigate the impacts to the species.

Is the development consistent with the Tweed Coast Comprehensive Koala Plan of Management (TCCKPOM)?

61. The TCCKPOM is an approved Koala Plan of Management for the purposes of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC).

62. The provisions of Chapter 4 of SEPP BC apply to the Tweed Local Government area: cl 4.4 of SEPP BC. At cl 4.8 SEPP BC requires the Council to take into account the TCCKPoM into account in determining the development application.

63. Clause 4.8 of SEPP BC states:

4.8 Development assessment process—approved koala plan of management for land

(1) This section applies to land to which this Chapter applies and to which an approved koala plan of management applies.

(2) The council’s determination of the development application must be consistent with the approved koala plan of management that applies to the land.

64. The TCCKPoM details that the Tweed Coast koala population has declined by approximately 50% within the previous decade and the remaining 144 animals were effectively confined to three populations. Those three populations are centred on Cudgen Lake/Kings Forest, Round Mountain/ Koala Beach and Pottsville/Black Rock areas. The site is located within the Southern Tweed Coast Koala Management Area and is mapped within the bounds of the Pottsville KAP. The Black Rocks KAP is located to the south of the site.

65. Part 5 of the TCCKPoM contains the following provisions:

3.5.2.1 Koala Activity Precincts

KAP Management objectives:

The following management objectives will be used to guide this Plan in relation to the Koala Activity Precincts.

a) To actively reduce threats to koalas and Core Koala Habitat.

b) To increase the area and quality of Core Koala Habitat in the vicinity of existing koala populations.

c) To ensure that new developments within a KAP minimise impacts on koalas, whether or not they are currently present on site, through the retention and protection of Core Koala Habitat and the application of rigorous development controls.

d) To ensure that any development affecting koalas or their habitat within a KAP contributes positively to koala recovery within the KAP.

e) To ensure that planning for future development within a KAP positively contributes to koala recovery within the KAP.

f) To encourage all stakeholders, including private landholders and the community, to positively contribute to koala recovery within the KAP.

…

Pottsville KAP

The Pottsville KAP is approximately 331 ha, consisting mostly of the Council-managed Pottsville Wetlands. Adjoining lands containing Preferred Koala Habitat and significant koala activity areas also occur within this precinct.

The key management focus for this KAP is to build on the availability of high-quality koala habitat through restoration works in suitable areas to allow for population expansion. Managing the impact of vehicle strike on Kellehers Road will be a key future management consideration as the Dunloe Park urban release area is developed.

66. Section 5.11.3.3 of TCCKPoM applies as the development is proposed within a KAP. It requires that a minimum of 10 per cent of the land area of the proposed Development Envelope (including any envisaged infrastructure, easements, bush fire asset protection zones and the like) must be revegetated to create additional Preferred Koala Habitat. The KPOM details the compliance of the development application with this provision as follows:

The impact area covers a total area of approximately 4.7ha. The proposed areas to be revegetated within the proposed development total approximately 1.34 ha which is greater than the required 10%. The entire site is approximately 17.81 ha. Approximately 2.38 ha is proposed to be revegetated, with a further 9.41 ha to be retained and rehabilitated. This equates to approximately 11.79 ha or 66% of the site to be retained and rehabilitated.

(Exhibit H)

67. The development application seeks to vary provision 5.9.3(ii) of TCCKPoM by the removal of a PKFT which has a trunk diameter greater than 25mm. The provision states:

5.9.3 Retention of koala habitat

i) The removal of any Preferred Koala Food Tree is not permitted if actively used by koalas.

ii) The removal of any Preferred Koala Food Tree is not permitted for trees with a trunk diameter greater than or equal to 250 mm at 1.4m above the ground.

iii) The removal of any Preferred Koala Food Tree with a trunk diameter less than 250 mm at 1.4m above the ground shall be assessed on a case by case basis and if permitted will be conditioned, to offset the loss, in accordance with the Offset Requirements detailed in Appendix C.

iv) The removal of Preferred Koala Habitat is not permitted except where both of the following apply:

a) it is within an existing Development Envelope, and

b) it is within an bush fire Inner Protection Zone as defined by Planning for Bushfire Protection 2006 (RFS, 2006).

v) Any removal of Preferred Koala Habitat in accordance with (iv) above will be conditioned, to offset the loss, in accordance with the Offset Requirements detailed in Appendix C.

The development application

68. The development application includes an Ecological Assessment. Two threatened fauna species were recorded on the site during the field assessment: the koala and the eastern osprey (pandion cristatus). The Ecological Assessment incorporates a test of significance in accordance with s 7.3 of the BC Act for the koala and concluded that the proposed development would not result in a significant impact on the species and therefore the BOS threshold would not be exceeded.

69. The development application is accompanied by an Amended Ecological Assessment dated October 2024 (Updated Ecological Assessment).

70. The updated ecological assessment maintains the conclusion that the proposed development will not have a significant impact on the koala species.

71. On the preceding basis the Applicant argues that the development application is not required to be accompanied by a BDAR.

Expert evidence

72. The koala species (Phascolarctos cinereus) is listed as endangered under the BC Act and the Environmental Protection and Biodiversity Conservation Act (Cth). The TCCPoM estimates that in 2020 the Tweed Coast Koala population was around 144 animals and cites that the population had experienced a 50% decline in numbers in the preceding decade.

73. It is agreed between the experts that the site is mapped as being part of the Southern Tweed Coast Koala Management Plan Area (KMA) and is mapped as part of the Pottsville Koala Activity Precinct (KAP). The southern portion of the site is mapped as preferred Koala Habitat which continues into the vegetation land to the south of the site. The experts agree that the development site supports a resident population of koalas and provides connectivity to the populations to the north and south of the site.

74. The original ecology assessment accompanying the development application utilised data from BioNet Atlas records on the Altas of NSW Wildlife. That assessment for koala sightings nominated nine sightings on the site. Further, koala scats on were identified in three locations on the site.

75. The field work supporting both ecological assessments involved:

“ – An initial site assessment completed by one (1) Senior Ecologist on 26 August 2022;

- An additional site assessment completed by one (1) Senior Ecologist on 5 December 2022;

- A third site assessment completed by one (1) Principal Ecologist/ accredited BA assessor and one (1) Senior Ecologist on 6 December 2023;

- A final site assessment completed by one (1) Principal Ecologist/ accredited BA assessor and one (1) Senior Ecologist on 24 September 2024.

A total of 32 hours have been spent assessing ecological values on the site”

(Exhibit A)

76. The Updated Ecological Assessment nominates one koala recorded on the site, utilising the Tweed Koala Sightings Project records.

77. In their first joint report the experts agree that that the site forms part of a critical movement corridor providing connectivity between the Koala Beach/Pottsville Beach Koala Management Precincts and the Pottsville KAP. That relationship is demonstrated in the Updated Ecological Assessment as follows:

78. The experts agree that koalas will readily move >500 m over open ground move between patches of vegetation and are likely traversing open areas within the site to reach patches of vegetation located north and south, as well as using trees within the site.

79. The site contains four PKFT, one is proposed for removal as part of the development.

80. The Updated Ecological Assessment includes a test of significance for the koala. That assessment records that there are 1706 records of the koala within 10km of the site. Further, the assessment notes that koalas are regularly sighted on the opposite side of Pottsville Road and attempt to cross the road at the boundary of, or in proximity to, the site. It concludes:

‘The Tweed Koala Sightings Project (TSC 2024) identifies numerous koala sightings in the vicinity of the subject site (Fig 11). The sightings and accompanying record data suggests that koalas are regularly recorded on the opposite side of Pottsville Road from the proposed development site and have occasionally been observed attempting to cross the road (sometimes unsuccessfully) at this general location. Evidence of this species was recorded on the subject site.’

(Exhibit H)

81. The test of significance in the Updated Ecological Assessment utilised data from the Tweed Koala Sightings Project over the data in BioNet, the Atlas of NSW Wildlife records which formed the basis of the original ecology assessment. In his oral evidence Mr McArthur explained this change in data source was on the basis of the Tweed Koala Sightings Project data being a local community source which he understood was uploaded to BioNet.

82. During the giving of oral evidence, the ecology experts confirmed that any holder of a scientific license is required to lodge any recorded siting of flora and fauna to this BioNet database.

83. Further, during the giving of expert evidence the ecology experts accessed the BioNet database and confirmed it contains ten recorded koala sightings on the land: (Transcript 4 November 2024, p 13-14).

84. The test of significance notes that the Office of Environment and Heritage (OEH) nominates the following threats for the koala species:

85. Loss, modification and fragmentation of habitat

86. Vehicle strike

87. Predation by roaming or domestic dogs

88. Intense prescribed burns or wildfires that scorch or burn the tree canopy

89. Koala disease

90. Heat stress through drought and heat waves

91. Inadequate support for fauna rehabilitation and emergency response

92. Small population size or geographically isolated populations

93. Poor understanding of population distribution and trend

94. Poor understanding of animal movements and use of habitat

95. Poor understanding of social and economic value of koalas to community.

96. Mr McArthur’s test of significance for the koala notes that the proposed development has a direct impact on the koala species through the removal of a PKFT. Further, the assessment notes it will impact habitat which he argues is highly disturbed grass lands with scattered trees. Mr McArthur argues these impacts are offset by:

97. The retention of koala habitat on site.

98. Revegetation of existing koala habitat.

99. The improvement of koala movement opportunities by increasing the density of planting within the identified corridor.

100. The offset of the removal of one PKFT with replanting of 38 preferred koala trees.

101. The preparation and implementation of a Koala Offset Management Plan (KOMP) to manage and protect retained and rehabilitated parts of the site.

102. On the preceding basis the test of significance concludes that the development is unlikely to result in the extinction of the local population.

103. The test of significance concludes that the development is unlikely to result in the local extinction of the koala species. Accordingly, on this basis no BDAR is required. Mr McArthur’s evidence in the joint report and his oral evidence maintained this conclusion.

104. The ecology experts in the proceedings prepared three joint reports and gave oral evidence. In the joint reports and his oral evidence Mr Garvey argued that the proposed development should not be granted consent for the following key reasons:

105. The proposed development will result in a significant impact on the koala due to fragmentation of a critical movement corridor, the last remaining linkage, between the Koala Beach/Pottsville Beach Koala Management Precincts and the Pottsville KAP and one that is important to the species long-term survival in the locality ability.

106. Detrimental impact on the role of the site in the movement of koalas. Mr Garvey argues that the site is the last remaining link from north to south with residential development to the east and residential development and cleared agricultural land to the west. The corridor nominated in the proposed development is insufficient to maintain this role, noting that the adjoining urban development is hostile for koalas with increased threats and higher mortality.

(a) Mr Garvey contends that the impact of the proposed development to this connective link is unacceptable. the development will further fragment and isolate these populations, reducing the ability for koalas to disperse north-south and impacting on the species ability to exchange genetic material and maintain genetic links. (b) The maintenance of a functional link is important to the long-term survival of the koala in the locality and is the last remaining linkage, between the Koala Beach/Pottsville Beach Koala Management Precincts and the Pottsville Koala Activity Precinct.

3. Further, Mr Garvey argues on merit the development application should not be approved as it will have unacceptable impacts on the koala:

(a) the proposed development is not consistent with the TCCKPoM (TSC, 2020) due to the removal of one PKFT (b) to achieve a better ecological outcome, as required by the variation requirements in s 5.12 of the TCCKPoM, connectivity must be retained in the eastern portion of the site. This is not achieved by the development application.

(i) The Updated Ecological Assessment relies on the thin strip of vegetation to the eastern end of the site, with additional planting, to offset the impact to connectivity between the koala populations to the north and south (the Koala Beach/Pottsville Beach Koala Management Precincts and the Pottsville KAP) of the site. Mr Garvey argues that this reliance is misplaced as paddocks and intact vegetation provide for the relatively free and unimpeded movement of koalas north-south through the site. Urban environments do not provide this free access for movement of koalas, and introduce additional risks such as vehicle strike. Further, the construction of civil works such as retaining walls will further impeded movement of koalas. (ii) The width of the proposed koala movement corridor is too narrow to be effective. The ongoing inclusion of Sites 71-74 in the portion of the site south of the Ambulance station limits the width of the corridor in this area and results in the need to construct roads to and from these lots, introducing a threat of vehicle strike into the corridor. (iii) The type of fencing proposed along the northern edge of the site is a type of fencing is inappropriate for a koala corridor and will prevent animals accessing the corridor.

89. Despite amendments to the development application in their evidence the experts remain in dispute in relation to the proposed koala corridor. The difference in their views centred on the width of the corridor provision, the extent of planting and revegetation possible and whether the corridor is effective at mitigating threats to koalas.

90. Mr Garvey argues for a wider corridor achieved through the deletion of proposed Lots 71-74 as a minimum, and preferably also 43 and 70 to separate the development from the proposed expanded koala corridor. The relevant lots are demonstrated in red in the following:

Extract of Masterplan Layout Drawing Rev J (red markup made by the Court)

91. Mr Garvey argues the deletion of these lots is necessary to accommodate sufficient planting, the unimpeded movement of koalas and remove the introduction of residential development lots in proximity to the corridor with the resultant threat of vehicle strike.

92. Mr McArthur disagrees that the amendment to the development application to increase the corridor is necessary, arguing that the proposed development will retain the critical linkage and will enhance movement opportunities and safety for koalas traversing the eastern portion of the development site.

93. Finally, the experts agree that the proposed removal of a PKFT is a variation to the controls in TCCKPoM at 5.9.3(ii) which states:

The removal of any Preferred Koala Food Tree is not permitted for trees with a trunk diameter greater than or equal to 250 mm at 1.4m above the ground.

94. Part 5.12 details the methodology for variation of the controls in TCCKPoM. It states that a variation to the control at s 5.9.3 will be considered “if it can be clearly demonstrated that a better ecological outcome for koalas is assured”.

95. Mr McArthur argues that the variation is supportable as the removal of the PKFT is offset by the replacement planting within the development of 38 new trees that are of species that are PKFT’s, including 13 of those within the delineated koala corridor enhancement area. Further, when looked at holistically he argues that the proposed development will result in a better ecological outcome for koalas on the following basis:

96. By replacing one PKFT with a minimum of 38 PKFT’s;

97. Strategically planting replacement PKFTs in areas of the site know to be utilised by koala’s;

98. Retaining all better quality movement habitat on the site, and minimising impacts (through amendments to the development layout) to lower quality movement habitat (i.e. open paddocks and scattered trees etc); and

99. These retained lower quality movement habitats will be converted to better quality movement habitats, due to (1) and (2) which will significantly reduce the time spent by Koalas on the ground where they are susceptible to threats.

100. In the alternative, Mr Garvey argues that the provisions of the TCCKPoM should not be varied as, despite the proposed planting of the PKFT’s, the development will not result in a better ecological outcome for koalas. His reasoning focusses on the provision of the corridor which he argues should be wider on the same basis as detailed at [85].

Findings

97. Insufficient information

98. The site is in a unique and important location, sitting between the Pottsville and Black Rock Koala populations. The Respondent contends that the proposed development is likely to have a significant and unacceptable impact on the local population of the koala. Whilst I consider I have insufficient information to determine whether the development will likely have a significant impact on koalas (within the meaning of s 7.2 of the BC Act), I am satisfied that the development application warrants refusal based on unacceptable likely impacts of the development on the local koala population when assessed on merit. My reasons follow.

99. I am unable to determine whether the development is likely to have a significant impact on koalas (in the terms of s 7.2 of the BC Act). This is because the two ecological assessment that accompany the development application utilise inconsistent base data for koala sightings on the land. The BioNet data extracted during the ecology experts oral evidence indicates ten recorded sitings of koala on the land. The Updated Ecological Assessment records one siting, utilising data from the Tweed Koala Sightings project. The original ecological assessment nominated nine sitings.

100. The Updated Ecological Assessment concludes that the development will not have a significant impact on the koala species but does so based on a single recorded sighting on the land.

101. BioNet is the repository for biodiversity data products managed by the Department of Climate Change, Energy, the Environment and Water. In my view the higher recorded sightings in the BioNet data should be preferred given the positive obligation imposed on those who have a scientific license to record any observations. The reliance in the Updated Ecological Assessment of the single recorded sighting impacts my assessment of the reliability of the conclusion that the development will not have a significant impact on the koala.

102. Unacceptable impacts on merit.

103. Further, many of the threats identified in the listing of the koala species, as detailed in [84] are directly or indirectly relevant to the site and the proposed development. These threats are given cursory consideration in the test of significance completed in the Updated Ecological Assessment. Given the uncertainty of the data and my preference for Mr Garvey’s evidence, for the reasons detailed below, I am unable to conclude that the proposed development is not likely to have a significant impact on the local koala population.

104. The Court, exercising the function of the consent authority to determine the development application, must weigh up and consider all the relevant matters (s 4.15 of the EPA Act), and having done so, determine the development application.

105. In undertaking this evaluation, I have considered this lack of certainty in the context of what the TCCPoM estimates as the extent of the local population, that being around 144 animals. I accept the submission of Mr Howard that the vulnerability of the population, given its limited number, is a relevant consideration in giving weight to the likely impacts arising from the development. In the context of a small remaining population, I am satisfied to take a cautionary approach to the uncertainty of the sighting data and conclude that it weighs against the approval of the development.

106. It is clear that the site provides an important linkage for habitat, species movement and genetic dispersal between the two adjacent koala populations. Despite the lack of clarity of the sighting data, the experts agree that the site of the proposed development supports a residential population of koalas and provides connectivity to the populations to the north and south of the site. I accept the evidence of Mr Garvey [88] that the proposed development will fragment this movement corridor and that this impact is not sufficiently mitigated. I accept Mr Garvey’s evidence and reasoning detailing the insufficiency of the mitigation and the remaining risk of detrimental impacts on the koala.

107. As noted above I accept and prefer the evidence of Mr Garvey that the proposed development will have a detrimental impact on the movement of koalas across the site and between the local populations to the north and south of the site. I am not persuaded by Mr McArthurs evidence that the proposed koala corridor located to the far east of the site will sufficiently mitigate this impact. In my view the corridor proposed is too narrow to be effective and should be enhanced, possibly by the inclusion of at least the sites identified by Mr Garvey. The development proposed introduces specific risks to koala’s arising from at least the introduction of vehicles (risk of vehicle strike) and by displacement of existing ground over which the experts agree koala’s currently traverse. I accept the evidence of Mr Garvey that the design of the proposed corridor provides insufficient separation from the development and lack sufficient habitat to offset the extent of the proposed development footprint.

108. The provisions of TCCPoM should not be varied

109. Finally, in my reasoning I have given weight to the provisions of the TCCPoM. This plan of management has been prepared by Tweed Shire Council in consultation with the community, as detailed in Pt 1.4 of the TCCPoM. The TCCPoM was adopted for the purposes of State Environmental Planning Policy (Koala Habitat Protection) 2021 (SEPP Koala 2021). SEPP BC repealed SEPP Koala 2021 on 1 March 2022, prior to the lodgement of the development application. Chapter 4 of SEPP BC applies to the development application and cl 4.8(2) of SEPP BC require the consent authority’s determination to be consistent with the approved koala plan of management that applies to the land (see [63]) In this matter that approved koala plan of management is the TCCPoM.

110. As noted at [67] the development application seeks to vary the provisions of s 5.9.3 of the TCCPoM by the removal of a PKFT, Within the terms of the TCCPoM such a variation can be supported where an applicant can demonstrate a better ecological outcome for koala’s is assured. I accept the development application proposes the revegetation of a portion of the site with 38 PKFT and proposes to continue the management of this corridor through the KOMP, along with the mitigation measures summarised at [85]. However, I find that the provisions should not be varied for two reasons:

111. I am not persuaded that, consistent with the provisions of TCCPoM, the development application demonstrates a better ecological outcome for koala’s is assured. The development application will introduce a fragmentation of the existing movement of koalas across the site, introduces the risk of vehicle strike (especially adjacent the new corridor on the eastern boundary of the site), remove a PKFT under which koala scats were located, and the proposed civil works will act to impeded ground movement of koalas across the site. I accept the evidence of Mr Garvey that a variation to the provisions of 5.9.3 are not justified.

112. I accept the evidence of Mr Garvey that the design of the proposed corridor provides insufficient separation from the development and lack sufficient habitat to offset the extent of the proposed development footprint.

113. Applying cl 4.8(2) of SEPP BC I am not persuaded that the development application is consistent with the provisions of TCCPoM which is the approved Koala Plan of Management which applies to the land as it seeks to remove a PKFT in circumstances where I find that the application does not demonstrate that a better ecological outcome for koala’s is assured.

114. Together the proceeding inadequacies of the development application to avoid, minimise and or mitigate the adverse impacts that the development will have on the local population of the koala and the koala habitat on the site, justify the refusal of consent pursuant to s 4.15(1)(b) of the EPA Act and s 7.13(2) of the BC Act.

Sewer is not available and no adequate arrangements for sewer have been made

LEP 2014

113. Pursuant to cl 7.10 of LEP 2014, consent must not be granted unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewer (Emphasis added)

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

114. There is an agreement between the parties, and their experts, that water supply is available to the proposed development and that, subject to the approval and implementation of the s 68 Application, is suitable for the proposed development.

115. Whether the precondition at cl 7.10 of LEP 2014 in relation to the disposal and management of sewer was satisfied was a key contention in the proceedings and was the subject of expert evidence and legal submissions.

Caselaw

116. In the decision of Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (‘Palm Lake Works’) the Court considered cl 28(1) of the then State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors SEPP), which provided:

(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

117. The Court held that the preceding clause established a condition precedent to the grant of consent, being the formation by the consent authority of a positive opinion of satisfaction that the water and sewer services “will” be connected, with such opinion to be formed on the written evidence before the consent authority at the time of its determination of the application. Further, the Court held that the provision was not satisfied by forming an opinion of satisfaction where that opinion was dependent upon a later application being made, and approval being given, to carry out works to extend the water and sewer mains in order to service the proposal for the seniors housing development.

118. Moreover, Preston CJ found where cl 28(1) of the Seniors SEPP required the Commissioner to be satisfied by written evidence that the seniors housing development “will” be connected to a reticulated water system and have adequate sewage facilities before granting consent to the development application for that development, the relevant time of satisfaction was at the grant of consent. Where a deferred commencement condition of consent came into existence upon, and not before, the grant of consent it could not form a lawful basis for the satisfaction required by cl 28(1) of the Seniors SEPP.

119. The decision of Robson J in Georges River Council v Eskander [2024] NSWLEC 98 (‘Eskander’) considered cl 6.9 of the Georges River Local Environmental Plan 2021 (LEP 2021) which is in similar terms to cl 7.10 in LEP 2014. Specifically, Eskander considered whether the provision was satisfied in relation to ‘suitable vehicular access’ at sub cl (f), by the imposition of a deferred commencement condition on the development consent that required the obtaining of an easement prior to the operation of the consent. Justice Robson held that the precondition was not satisfied on the following basis: Eskander [55-57]

In my view, properly construed, where the consent authority forms the state of satisfaction that suitable vehicular access is available, the prohibition on the grant of consent otherwise in cl 6.9 of the GRLEP is lifted and, subject to other relevant matters requiring consideration under s 4.15(1) of the EPA Act, development consent can properly be granted (with conditions where appropriate). However, if the consent authority cannot form that state of satisfaction, the prohibition remains and, as submitted by Council, cl 6.9 then provides a second pathway being that the consent authority is to be satisfied that “adequate arrangements have been made” that the “essential” service will be available “when required”.

I find that the state of satisfaction thereby requires consideration at a different moment in time, such that the adequate arrangements must have “been made”. That is, there must be a current “arrangement” that has “been” made. That “arrangement” is that the “essential” service (here, suitable vehicular access) be “available when required”, that is, in the future. Put another way, the service that is not presently available, will be available, and it will be available because adequate arrangements have “been made” to make it available.

Further, while it is clear that something less than a formal or binding promise is required, I find that there must be some form of objective and tangible proof to constitute an arrangement as something “made”. It is in this context that I accept the words quoted by Stein JA in Codlea at 378, to the effect that such an arrangement must be “at least, a willingness on the part of the relevant authorities to co-operate in a consensual way…”. However, as Stein JA also found, proof of such an arrangement must “exist” and must “pre-exist the ‘satisfaction’ of [the] council with [it]”. It is in this sense that I consider the comments of Preston CJ of LEC in Crighton Properties, that “arrangement”, within the context of an environmental planning instrument, means “something in the nature of an understanding between two or more persons” (at [42]), should be seen. Again, considered in this way, the fact that the arrangement is tangible, gives a consent authority the ability then to determine if the qualities or characteristics of an arrangement that has been made for the supply of (in this case, suitable vehicular access) a service in the future, is “adequate”.

120. In Eskander the Court held that when cl 6.9 of the LEP 2021 is read properly and literally, taking account of the purpose of the provision, the term ‘adequate arrangements’ requires the consent authority to reach a state of satisfaction that arrangements have been made. It is insufficient for the state of satisfaction to be met on the basis of the commencement of a process which may result in the provision of (in that case) suitable vehicular access. The terms of cl 6.9 of LEP 2021 are in the same form as the terms of cl 7.10 in LEP 2014.

Council’s Environmental Protection License (EPL)

121. Mr Howard notes that the current EPL for the Hastings Point Wastewater Treatment Plan (HPWWTP) includes the following condition, which is also reproduced in the Council’s statement of facts and contentions:

05.2 The licensee must ensure that any extensions to the reticulation system after January 2024 are planned, designed, constructed and installed to prevent as far as practicable overflows from the premises.

Note: ‘The premises’ includes both the new and the previously existing parts of the sewerage treatment system.

Expert evidence

122. The development application is accompanied by a Water and Waste Water Capacity Assessment (WWWCA) which examines the provision of sewer services to the proposed development (Exhibit H). The WWWCA draws the following conclusions in relation to sewer capacity:

123. That as part of the proposed development, at the site boundary, the proposed private pump stations will convey:

(a) 2.74L/s peak dry weather flow. (b) 5.88L/s flow in a 50% Annual Exceedance Probability (AEP) event, and (c) 6.95L/s in a 20% AEP event.

2. That when these flows are included in the downstream sewer capacity the development will cause a maximum increase in peak wet weather flow hydraulic grade line of 270mm and that the minimum freeboard is modelled at 1.08m. The report notes that a minimum of 1m freeboard is considered the industry standard to avoid adverse impacts to downstream customers.

3. The existing downstream sewer pump stations have capacity for the 50% AEP event, with the inclusion of the proposed development. The hydraulic modelling for the 20% AEP event (known as a one-in-five year storm event) that occurs over a 24 hour period shows the existing capacity of the pump station is exceeded for a very short period of time, but that the pump station has sufficient attenuation capacity to not surcharge.

4. Further, any surcharge of the existing downstream gravity sewer can be avoided by ‘upsizing’ Council 150 diameter sewer main to a 225mm diameter main and constructing 15m of linear pipe storage.

5. The WWWCA concludes that the proposed development does not sufficiently reduce the system performance to cause adverse impact to downstream customers.

6. The WWWCA demonstrates that the proposed development does not compromise the scale and intensity of future development with the urban zoned areas, and those developments that are committed.

7. In relation to the capacity of the HPWWTP the report concludes:

8. The HPWWTP has a design capacity of 18,000 EP, but has a current biological capacity of 13,100 EP.

9. Based on the GHD Report, the lowest cost option to achieve the target plant capacity of 18,000 EP is $10,300,000 (in 2024 dollars).

10. In all of the following planning scenarios, based on the GHD Report, the proposed development increased the plant loading by approximately 0.9% to 1.4% and did not impact whether the plant was under or over capacity.

11. 2023 HPWWTP loading assessment

(a) 12,724 EP (without committed developments) during normal periods.

(b) 13,997 EP (without committed developments) during peak school holiday periods.

(c) 16,477 EP (including committed developments, infill and secondary dwellings) during normal periods.

(d) 18,125 EP (including committed developments, infill and secondary dwellings) during peak school holiday periods.

5. 2023 HPWWTP loading assessment + the proposed development

(a) 12,940 EP (without committed developments) during normal periods

(b) 14,213 EP (without committed developments) during peak school holiday periods.

(c) 16,693 EP (including committed developments, infill and secondary dwellings) during normal periods.

(d) 18,341 EP (including committed developments, infill and secondary dwellings) during peak school holiday periods.

6. Further, the WWWCA includes the following assessment against the current capacity and the design capacity.
7. Utilisation against current biological plant capacity of 13,100 EP

(a) 97.1% and 98.5% capacity utilisation during normal periods without and with the Proposed Development respectively (not including committed developments).

(b) 106.8% and 108.2% capacity utilisation during peak holiday periods without and with the Proposed Development respectively (not including committed developments).

(c) 125.8% and 127.1% capacity utilisation during normal periods without and with the Proposed Development respectively (including committed developments, infill and secondary dwellings).

(d) 138.4% and 139.7% capacity utilisation during peak holiday periods without and with the Proposed Development respectively (including committed developments, infill and secondary dwellings).

8. Utilisation against plant design capacity of 18,000 EP

(a) 70.7% and 71.7% capacity utilisation during normal periods without and with the Proposed Development respectively (not including committed developments).

(b) 77.8% and 78.7% capacity utilisation during peak holiday periods without and with the Proposed Development respectively (not including committed developments).

(c) 91.5% and 92.5% capacity utilisation during normal periods without and with the Proposed Development respectively (including committed developments).

(d) 100.7% and 101.7% capacity utilisation during peak holiday periods without and with the Proposed Development respectively (including committed developments).

124. The WWWCA concludes that the proposed development does not cause capacity deficiencies on the reasoning that the HPWWTP’s capacity is exceeded irrespective of the proposed development. Further, it concludes that the sewer loads from the proposed development would have an insignificant impact on the HPWWTP performance representing between 1-2% of the plants capacity.

125. The experts addressed the contentions in both proceedings (see [1]) in a single joint report. The experts were also called for cross examination and oral evidence.

What is the sewer demand of the proposed development?

126. The WWWCA estimates that the additional sewer load arising from the proposed development is 216 EP. This is based on conversion rate of 2.8 EP/ ET (equivalent persons/ equivalent tenement). One ET is the estimated load of sewage from an average residential house in dry weather flow conditions.

127. In the joint report Mr Wilson argues, based on his experience with similar developments, that the conversion rate utilised for the proposed development should be closer to 1.8 EP/ET, which would result in a calculation of the additional sewer load arising from the proposed development of 139 EP.

128. No formal amendment was made to the WWWCA which accompanies the development application, or the s 68 Applicant, in response to Mr Wilson evidence of a potentially reduced sewer load arising from the development.

What is the capacity of the sewer infrastructure?

129. The experts agree with the calculations of sewer capacity extracted at [123(4)] above.

130. Mr Seymour argues that Councils assessment (contained in the GHD Report) concludes that there is insufficient capacity within the downstream infrastructure of the sewerage system to service the proposed development. Further, he argues that the Council has planned for infrastructure upgrades arising from additional sewer loading within land zoned for urban development and included within the DSP. He concludes, consistent with the calculations of sewer capacity at [124(4)], that there is no available sewer capacity within Council’s sewer network, up to and including the HPWWTP and dune disposal system, to service any additional development beyond the zoned/ possible development and existing development identified in the DSP. Finally, Mr Seymour notes that the modelling of the pump station detailed in WWWCA demonstrates that the pump station capacity is exceeded in a 20% AEP event increasing the risk of surcharging manholes and increasing the risk of overflows.

131. Mr Halcrow and Mr Wilson argue that the WWWCA is responsive to this concern of Mr Seymour by incorporating an increase in the sewer pipe diameter for a section of the main from 150mm to 225mm and constructing a 15m length of 750 diameter piped linear storage. They argue that both of these works will increase the capacity of the sewer infrastructure to accommodate the 20% AEP event and the proposed development.

132. During oral evidence the experts undertook further joint conferencing in relation to the provision of additional emergency storage capacity at each of the onsite pump stations to mitigate against the risk of exceeding capacity during a storm/blackout event. In addition, by condition, these pump stations will be required to have back up power supply and high level and failure alarms. The experts agree that these arrangements are adequate mitigation.

Are services available for the disposal and management of sewer generated by the development?

133. Mr Seymour argues that sewer services are not available to the proposed development, and cl 7.10 is not satisfied, on the following basis:

134. Council’s assessment of the capacity of both the relevant pump stations and of HPWWTP demonstrates that the proposed development demand cannot be accommodated.

135. If the additional demand was conveyed to the public sewer infrastructure it would result in a real risk of future regulatory breaches and detrimental environmental impacts from the discharge of untreated sewerage.

136. The applicant does not have consent from the Council to connect their development to public sewer infrastructure. That consent has not been provided, and should not be provided, for two reasons. Firstly, s 292 of the Water Management Act 2000 (WM Act) and s 70 of the LG Act place an obligation on Council, prior to extension of reticulation and service areas, must include an assessment of the downstream infrastructure to ensure there is sufficient capacity. It is clear in this case there is not capacity. Secondly, any additional capacity that may be generated from upgrades to HPWWTP is allocated to committed developments or to areas that are zoned for urban development under LEP 2014 both of which are delineated in the relevant DSP.

137. Exceedance of the capacity of public sewer infrastructure by the addition of the sewer load from the proposed development increases the risk of the surcharging of manholes, increases the risk of overflows and the overloading of the HPWWTP.

138. If consent was given, it is unlikely that Ministerial approval under s 60(c) of the LG Act or s 292(1) of the WM Act would be provided to add sewerage collection to an areas that was not previously serviced in the circumstances detailed in (1)-(4).

139. In contrast Mr Halcrow and Mr Wilson’s evidence argues that both the design of the internal sewer reticulation, the proposed connection to the Council main and reticulation, and the HPWWTP are able to accommodate the proposed development. Their evidence can be summarised as follows:

140. The site is capable of being connected to the Council sewer main in Ballina Street in a manner that avoids impacts to trees and existing infrastructure.

141. The proposed increase in pipe diameter of the sewer line (150mm to 225mm) will increase the capacity and address any concerns detailed in the WWWCA in relation to the pump station, or risk of surcharge, due to a storm event.

142. In relation to the capacity of the HPWWTP, in all planning scenarios detailed at [123(3)] and [123(4)] the proposed development increases the existing sewer load by 0.9% to 1.4%. This is a marginal increase. Importantly, the increase does not impact on whether the HPWWTP is operating within its capacity, or exceeding its capacity. In no scenario is it the proposed development that causes the exceedance of capacity, and it is not this development which will lead to breach.

143. The increase in sewer loads at the HPWWTP caused by the proposed development are insignificant. The Council has had viable and feasible solutions to resolve the known capacity constraints of the treatment plant.

144. Mr Halcrow and Mr Wilson conclude that the proposed development can be serviced by sewer and that the proposed civil design and the fact of the s 68 Application are adequate arrangements.

Gravity

136. The experts agree that the development application and the s 68 application propose a sewer connection point to an existing sewer main within Ballina Street to service the site. A new sewer rising main is also proposed within Seabreeze Boulevarde.

137. The experts agree that the Tweed Shire Council’s Water and Sewer Development Design Specification D 12 requires that any connection to the sewer system be gravity fed. This would require the inclusion of a private pump station. The experts accept that the Council’s preferred connection is that the connection of the private pump station rising main is to the sewer system in proximity to proposed Lot 67-75, however it is accepted that such a connection would rely on owners’ consent from the Council. This is preferred on the basis that the sewer servicing would be gravity fed. This preferred connection is not proposed by the Applicant.

138. The proposed development will operate as a gravity fed sewer system internally to the subject site. However, due to the topography of the location and the position of existing services a rising main is proposed to ultimately connect to the Council’s sewer network in Ballina Street. Mr Halcrow argues that due to the design adopted by the applicant the rising main will, in effect, operate as a gravity main except for the last 10-15 metres of its length.

139. In oral evidence Mr Seymour maintained his position that a gravity connection is available to the subject site but a gravity flow relies on a connection with the Council reserve opposite the Western end of site. Mr Halcrow’s oral evidence was the proposed design was acceptable, commonly implemented and was designed to avoid any private connections or community titled land.

Respondent’s arguments

140. The Respondent argues that in the circumstances of these proceedings the consent authority cannot be satisfied that the sewer services that are essential for the development are available, or that adequate arrangements have been made to make them available when required. The Respondent argues that the precondition is not met on two bases:

141. Firstly, there is no capacity for provision of sewerage to the proposed development as the capacity of the sewer system is exhausted by existing and approved developments in non peak times, and exceeded by existing development during peak times (December / January and the Easter period).

Section 292 of the WM Act and s 70 of the Local Government Act 1993 (LG Act) place an obligation on the Council to complete an assessment of the downstream infrastructure to ensure there is sufficient capacity. The Respondent argues that the HPWWTP does not have capacity for the proposed development. The HPWWTP, and its dune based effluent outfall, capacity has a design capacity limit of 18,000 Equivalent Persons (EP). Significant improvement works are required to for the HPWWTP to achieve performance at this design capacity and to reliably meet EPA Licence requirements.

The Respondent argues that the connection of the proposed development to the sewer infrastructure will increase the risk of regulatory breaches and impact negatively on the service standards for downstream customers.

2. Secondly, even if the Court finds, on the basis of the expert evidence, that sewer capacity exists for the proposed development, the Council, under its Development Servicing Plan (DSP), has allocated provision of expanded sewerage services to identified catchments. The site is outside the mapped bounds of these future service areas. As a result the proposed development has not been allowed for in the Tweed Council's water or sewer infrastructure network or planning. The sewer network's capacity (including the future capital works detailed in the DSP) has been exhausted by all existing and anticipated zoned development within the DSP area.
3. It would be inconsistent with Council’s strategic planning to move outside this planning framework and provide sewer services to this site. The consequence of doing so would be that other areas currently allocated for provision of sewer services under the DSP would be unable to be serviced due to lack of capacity.

The Court should not grant development consent, because to do so would be to undermine the Council’s orderly planning under its DSP for the provision of sewerage services to existing and anticipated development within urban/residential zones and put the Council at risk of breaching its obligations under the environment protection licence it holds for the operation of the HPWWTP.

141. Outside of these proceedings Tweed Shire Council has engaged GHD Group to prepare assess the potential options for the upgrade of HPWWTP to expand capacity. That report is titled ‘The GHD Hastings Point WWTP Options Report’ and is dated 24 April 2024 (the GHD Report). It was tendered in the proceedings as Exhibit O.

142. In support of the first bases the Respondent submits cl 7.10 of LEP 2014 is not satisfied, Mr Howard submits that the GHD Report establishes the following:

143. The HPWWTP has a biological capacity of 13,100 Equivalent Persons (EP). This capacity is less than the design capacity of 18,000 EP.

144. The past seven years of effluent quality data indicates the HPWWTP in its current arrangement is not consistently meeting its Environmental Protection License (EPL) requirements.

145. That the HPWWTP is already operating above its current biological capacity during peak periods.

146. The Applicant’s proposed development would add 216 EP to a current system that is already exceeding its capacity at peak periods. The provision of sewerage services to the proposed development would increase the risk and likelihood of Council breaching its EPL.

147. Further, the Respondent submits that the Applicant does not have consent from Tweed Shire Council to connect to Council’s water or sewer schemes due to the unacceptable risk of regulatory breaches, unacceptable environmental and health risks and adverse impacts on service standards.

148. Consequently, the Court must not grant development consent having regard to the terms of cl 7.10 of the LEP 2014 as services (sewerage) required for the development are not available, nor have adequate arrangements been made for the provision of sewer services.

149. The Respondent submits that to facilitate development of the site at the scale proposed, substantial infrastructure upgrades would be required. Those upgrades would be required from the local sewer pump station, up to the HPWWTP. Those upgrades are considered unfeasible and impractical.

150. In response to the submissions of the Applicant, Mr Howard argues that it is not a satisfactory response to the above points for the Applicant to assert either:

151. That the capacity of the HPWWTP is already exceeded at peak and the proposed development will only add a small percentage increase to that existing exceedance; and

152. That the GHD Report provides options for Council to increase the capacity of the HPWWTP and expand its treatment capacity so that any deficit can be resolved.

153. Applying Eskander Mr Howard concludes that the development application either accepts that additional load on the HPWWTP at times of exceedance is acceptable or alternatively relies on works that the Applicant has no agency over. He concludes that neither meet the requirements of cl 7.10 of LEP 2014.

Displacement of capacity in the DSP

148. Mr Howard submits that the provision of sewerage services should be allocated in an orderly and planned manner in accordance with the DSP. Namely, provision of future sewer to those catchments identified in the DSP and zoned for urban development in LEP 2014. He submits that it is not orderly and economic use of the land for capacity to be allocated on an ad hoc basis to development on rural land that is outside the catchments nominated for the provision of sewerage services.

What does cl 7.10 of LEP 2014 require?

149. The Respondent submits that the Applicant’s construction of cl 7.10 of LEP 2014 is overly narrow and inconsistent with the text of the provision and its purpose. In relation to sub cl (c), Mr Howard submits that the text of the clause uses the conjunctive ‘and’ to refer to both “disposal” and “management” of sewerage. He argues that it is clear that both are to be considered by the consent authority as essential components of the service.

150. Further, Mr Howard submits it is incorrect to argue that the consent authority’s enquiry under cl 7.10(c) ceases once sewerage leaves the site as it is inconsistent with the clause’s evident purpose and its role in protecting public health, environmental quality and orderly infrastructure planning.

151. Mr Howard concludes that the Court, applying the terms of cl 7.10 of LEP 2014 and the caselaw, should not accept the Applicant’s submissions on the interpretation of the provision.

Applicant’s arguments

152. The Applicant’s principal arguments in relation to this contention are as follows:

153. At the moment the existing public sewer infrastructure, and in particular HPWWTP, has sewer capacity during normal times. At peak times there is an acknowledgement that sewer demand cannot be met by the system with the HPWWTP operating at 120% of its capacity as detailed in the GHD Report.

154. Since 2018 the Council has been aware of the lack of sewer capacity and the performance of HPWWTP. The Council has responded to this lack of sewer capacity by the:

(a) Commission of ‘20180130 Memo GHD HPWWTP Capacity Assessment’; (b) Commission of the ‘Hastings Point WWTP Upgrade Concept Study’ by GHD dated 2018; (c) Commission of ‘Hastings Point WWTP Loadings Assessment Final Draft Rev 2, 2023; (d) Commission of the ‘Hastings Point WWTP Options Assessment’ by GHD 2024 (the GHD Report); and (e) Proactive engagement with the Environmental Protection Agency (EPA) in relation to breaches of and variations to the Environmental Protection License (EPL) caused by the current sewer loads.

The above demonstrates that the Council is working towards upgrading of the HPWWTP to provide an increase in capacity to 18,000EP by 2043. This demonstrates that the HPWWTP has current and future capacity to service the demand generated by the development.

3. The Applicant’s development application does not make a meaningful difference to the exceedance of capacity experienced by the sewer system at peak. This is not a circumstance where the proposed development is the tipping point, or the trigger, for an upgrade of sewer infrastructure.

4. The Respondent, as a sewer authority, is required to implement upgrades to the infrastructure to increase capacity. This obligation, and the GHD Report, meet the test for ‘adequate arrangements’ in cl 7.10(c) of LEP 2014. There is a lawful mechanism to levy a charge on the Applicant to pay a contribution toward existing and future works at the HPWWTP.

5. The DSP does not prohibit service outside the ‘development areas’ identified within the plan. Rather, the DSP is intended to provide transparent charging under s 64 of the LG Act and s 306 of the WM Act in a manner consistent with the recommendations of the Independent Pricing and Regulation Authority (IPART).

6. Further, Ms Reid made submissions on the statutory interpretation of cl 7.10 of LEP 2014. In particular the extent of the enquiry to be made by the consent authority. She submits that where disposal of sewerage from a development is proposed to be via the reticulated system, for the purposes of cl 7.10(c) the sewer is ‘disposed’ of at the site boundary at the point of connection to the public sewer infrastructure. The management of the sewer in the public sewer infrastructure past this point of connection is an otiose consideration. She argues that to construe the term ‘management’ in cl 7.10(c) to require the consent authority to be satisfied of how sewerage is to be managed once it lawfully leaves the site is not intended by the scope of cl 7.10(c) of LEP 2014. In support of this submission, Ms Reid relies on the decision of Preston CJ in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 (HP Subsidiary), she argues:

The decision in HP Subsidiary is instructive, as ‘suitable road access’ was interpreted to simply be the access threshold to the development and not an assessment of the broader road network (or even the suitability of the road providing the access). If suitability of ‘road access’ were taken to its logical conclusion, the consent authority would need to be satisfied, presumably by Road Safety Audit, of the safety and suitability of the broader road network. Those considerations may be important, but are dealt with under different legislation and powers that are not specific to provisions of services to particular parcels of land.

Applicant’s written submissions, 10 April 2025.

154. Finally, Ms Reid submits that in considering the terms of cl 7.10 of LEP 2014 the Court should give weight to the Applicant’s s 68 application which proposes works to the sewer reticulation system and pump stations. The proposed connection of the development is to the existing 150mm gravity sewer main within Ballina Street to service the site. Connection is proposed via a new sewer rising main proposed to run within the service location corridor in Seabreeze Boulevarde road reserve. Those sewer works under the s 68 application consist of three main components:

155. Internal sewer reticulation network is proposed to connect each proposed site via an individual sewer connection,

156. Installation of a private sewer pump station in the vicinity of proposed Lot 69 (SK 53 of Exhibit V) and on the western boundary of the subject site,

157. A new sewer main proposed within the road corridor of Seabreeze Boulevard as shown in the Civil Engineering drawings (SK 75 of Exhibit V),

158. Increase in the diameter of the Council’s gravity sewer and include 15m of linear storage, and

159. a proposed connection point to an existing Council 150mm sewer main within Ballina Street to service the site.

160. During oral evidence, the experts agreed that it would be appropriate for the works to include further emergency sewer storage within the site in event of a power outage. These amendments were embraced by the Applicant and are proposed to be conditioned as Grampian style conditions on any approval of the application: Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 at [152].

161. Ms Reid argues that the approval of the s 68 application by the Court as part of these proceedings meets the requirements of cl 7.10(c) of LEP 2014 for the Court to be satisfied that adequate arrangements have been made for the disposal and management of sewer.

Findings

157. Pursuant to cl 7.10 of LEP 2014, to enliven the power to grant consent to the Concept DA, I need to be positively satisfied that either:

158. services for the disposal and management of sewage are available; or

159. adequate arrangements have been made to make services for the disposal and management of sewage available to the development when required.

160. The sewer services required for the proposed development are not currently available to the site, thus why the development application is accompanied by a s 68 Application.

161. For the reasons that follow, I find I am unable to be satisfied that adequate arrangements have been made for the disposal and management of sewage arising from the proposed development, thereby failing to satisfy the precondition in cl 7.10 of LEP 2014. My reasoning is:

162. It is clear on the agreed evidence of the experts that the proposed development will exacerbate a known circumstance of the Councils HPWWTP exceeding its capacity. That capacity is the known biological capacity of the plant. During peak periods the experts agree that the HPWWTP operates at 106.8% of its capacity. That is, it is over capacity by 7%. When the proposed development is included, the over capacity at peak periods increases to 8.2%.

163. Further, when an allowance is made for developments which have approval, or are capable of being approved on zoned land, the amount over capacity is 25.8% at normal times. The overcapacity amount is some 38% at peak.

164. I accept that it is demonstrated that the existing capacity of HPWWTP is exceeded currently in peak periods and is exceeded in non peak periods when an allowance is made for developments which have approval, or are capable of being approved on zoned land.

165. In considering the capacity of the HPWWTP, it is relevant to give weight to the fact that the site is located outside the bounds of the Tweed Shire Council DSP for planned sewer supply. I accept the evidence of Mr Seymour that there is no available capacity within Council’s sewer infrastructure and the DSP planning framework to accommodate additional development that is outside the service areas.

166. If the development was to be approved and implemented, I am satisfied on the evidence that it would result in a real likelihood of the capacity of the HPWWTP being exceeded. The result of such an exceedance of the treatment plants capacity is that untreated effluent is released from the sewer system. I find that such a likely impact arising from the proposed development is unacceptable.

167. The preceding five reasons are sufficient to draw the conclusion that the proposed development application does not have adequate arrangements for the disposal and management of sewer that arises from the development.

168. I am not persuaded by the submission of Ms Reid that the extent of the relevant enquiry under cl 7.10 is to the boundary of the site. The terms of the provision considered by Preston CJ in HP Subsidiary was directed to ‘suitable road access’. That is a different term to be satisfied than ‘the disposal and management of sewerage’. In the first matter it is the service of road access that is required to be suitable, with access to the site or the development the relevant question. In contrast in relation to sewer, the clause requires the consent authority to be satisfied that service of ‘disposal and management of sewer’ is available or that that adequate arrangements have been made to make the service available. Where the Applicant has a site which does not have sewer service available for the proposed development and is outside the bounds of the DSP, which seeks to manage the provision of sewer services, it is artificial to confine cl 7.10 to the consideration of sewer reticulation within the site.

169. I am not persuaded by the evidence of Mr Halcrow and Mr Wilson that the relationship between the sewer load of the proposed development and the exceedance of the HPWWTP capacity is only relevant to the extent that the proposed development exceeds/ triggers the exceedance. In my view the Applicant’s experts have given this fact, and the percentage change, too much weight in their evidence.

170. Rather in my view, in the analysis of the question of whether services are available or whether adequate arrangements have been made for the disposal and management of sewer, it is appropriate to give weight to factors such as:

171. whether the catchment experiences variable sewer loads (peak/non peak), or whether the sewer load is consistent and predictable,

172. the documented performance of the infrastructure itself,

173. whether the site is nominated or planned for provision of sewer services, and

174. the zoning of the land.

175. In these proceedings, the site is part of a catchment which experiences variable sewer loads arising from tourist and holiday activities. The infrastructure is demonstrably regularly operating over its capacity. The site is not part of a service area in the DSP and is not zoned for urban development. Finally, it is the agreed evidence of the experts that existing services are not available to accommodate the development and if service was to be provided to do so would exceed the capacity of public infrastructure, likely resulting is release of untreated effluent.

176. Further, in applying the reasoning in Eskander I note that it is not within the Applicant’s capacity to ensure any augmentation of the HPWWTP to achieve its design capacity, or any further upgrades. This adds weight to the finding that adequate arrangements have not been made to make services for the disposal and management of sewage available to the development when required.

177. On the preceding I find that cl 7.10 of LEP 2014 is not met and I am unable to be satisfied that the development application proposes adequate arrangements for the disposal and management of sewerage. As such, there is no power to grant consent to the development application and it must be determined by way of refusal.

178. Further, if merit assessment pursuant to s 4.15 of the EPA Act was undertaken, I find that if the development was to be approved and implemented, that on the evidence that it would result in a real likelihood of the capacity of the HPWWTP being exceeded. I am satisfied, on the evidence of Mr Seymour that given the demand arising from the development cannot be accommodated in the public sewer infrastructure there is a real and sufficient link between the proposed development and the offsite impacts. I accept that the likelihood of exceedance of capacity (risk of discharge of untreated effluent) is a realistic possibility arising from the additional sewer loads arising from the proposed development: Ballina Shire Council v Palm Lake Works Pty Ltd [202] NSWLEC 41 at [5]-[9]. I accept that the result of such an exceedance of the treatment plants capacity is that it being more likely that untreated effluent will be released from the sewer system at peak. It is not a mitigation to argue that this discharge already occurs, the approval of this development would result an exacerbation of that circumstance. I find that such a likely impact arising from the proposed development is unacceptable. This likely impact, in combination with the detrimental impacts detailed at [99]-[114] warrant the refusal of the development application on merit.

179. Consistent with the preceding reasoning I find that it is not appropriate to grant consent to the s 68 Application to carry out water supply, sewer works detailed in the application and to connect to the public reticulated sewer system.

180. Clause 15 of the LG Reg details the matters to be considered when determining applications for water supply, sewerage and stormwater drainage approvals. Those matters at sub cl 2 of the provision are:

2. In determining an application for the purposes of section 68 of the Act for an approval to do any of the activities to which this section applies, the council must have regard to the following considerations—

(a) the protection and promotion of public health,

(b) the protection of the environment,

(c) the safety of its employees,

(d) the safeguarding of its assets,

(e) any other matter that it considers to be relevant in the circumstances.

169. In giving weight to the matters listed at cl 15(2) of the LG Reg the matters at (b) and (d) weigh against the grant of consent to the s 68 Application.

Conclusion

170. At the conclusion of my assessment and evaluation of the development application I find that the application for development for the purpose of a long-term caravan park on the subject site should be refused on three grounds.

171. Firstly, that the precondition to consent in cl 7.10 ‘Essential Services’ of LEP 2014 is not met as I am unable to be satisfied that the development application proposes adequate arrangements for the disposal and management of sewerage. As such, there is no power to grant consent to the development application and it must be determined by way of refusal.

172. Secondly, that the likely impacts of the proposed development will have an unacceptable detrimental impact on the natural environment through the likely impacts arising to koalas and through the exceedance of the public sewer capacity.

173. These detrimental impacts arise firstly on the local population of koalas, by:

(a) Replacing open paddock habitat with a narrow corridor (under 30m wide), which is insufficient for koala movement according to expert evidence. (b) Including civil works (e.g., retaining walls and mounds) that will obstruct koala movement across the site. (c) Introducing risks identified by the OEH, including habitat loss and fragmentation, increased vehicle strike risk, and reduced connectivity between local koala populations due to the inadequate corridor. These impacts are not adequately mitigated.

174. Detrimental impacts also arise on the evidence from the proposed sewer servicing of the development. The servicing of the development will result in a real likelihood of the capacity of the HPWWTP being exceeded. The result of such an exceedance of the treatment plants capacity is that untreated effluent is released from the sewer system.

175. Secondly, giving weight to the provisions of the TCCKPoM as required by cl 4.8 of SEPP BC I find that the proposed development application has not clearly demonstrated that a better ecological outcome for koalas is assured. Thus, the provisions at 5.9.3 of the TCCKPoM should not be varied. Concordantly to determine the development application by the grant of consent would not be consistent with the approved koala plan of management that applies to the land as required by cl 4.8 of SEPP BC.

176. Whilst the Respondent raises other contentions in the proceedings, given the preceding conclusion I am satisfied it is not necessary to address these contentions as I have concluded that the development warrants refusal on the nominated grounds.

Orders

177. In proceedings 2023/285328, the Court orders that:

178. The appeal is dismissed.

179. Development application DA 23/0302 seeking consent for a long term caravan park, associated infrastructure work, earthworks, and access arrangements from 1126 Pottsville Road, Pottsville (Lot 2 DP 815370) is determined by way of refusal.

180. In proceedings 2024/188426, the Court orders that:

181. The appeal is dismissed

182. The section 68 application lodged with Tweed Shire Council on 18 March 2024 seeking an activity approval for water supply and sewer supply works to support development at 1126 Pottsville Road, Pottsville (Lot 2 DP 815370) is determined by way of refusal

183. Exhibits are returned with the exception of A, B, E, F, 2, 12.

D Dickson

Commissioner of the Court

**********