Visionary Investment Group Pty Ltd v Wollongong City Council

Land and Environment Court (NSW)|2018-11-23

LGERA 158 Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24; [2004] FCAFC 190 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212 Narden Services Ltd v Secretary of State for Scotland 1993 SCLR 434 Newbury District Council v Secretary of State for the Environment [1980] 1 All ER 731 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and with Stoneco Pty Limited [2010] NSWLEC 48 Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 132 Scott v Wollongong City Council (1992) 75 LGRA 112 Serafina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 2009 Stokes v Waverley Council [2019] NSWLEC1137 Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 Texts Cited: 2012 EPA Standard for Ground Gas Monitoring Guidelines for the Assessment and Management of Sites impacted by Hazardous Ground Gases Contamination Planning Guidelines SEPP55 - Remediation of Land Natural Resources Access Regulator 2018 Guidelines for Controlled Activities on Waterfront Land NSW DPI Policy and Guidelines for Fish Habitat Conservation and Management (2013) NSW RFS Planning for Bushfire Protection 2006 S Fairfull and G Witheridge, "Why do fish need to cross the road? Fish Passage Requirements for Waterway Crossings" (2003) NSW Fisheries Scottish Executive, Central Research Unit, The Use and Effectiveness of Planning Agreements, (2001) Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Visionary Investment Group Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) M Wright SC (Respondent)

Introduction

This is an appeal by the Applicant, Visionary Investment Group Pty Ltd against the deemed refusal, by the Respondent, Wollongong City Council, of development application number DA 2016/1019 as amended on 22 August 2018. The appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) (at the time the application was made, it was under s 97(1) of the EP&A Act as then numbered).
The development application was first made on 28 June 2016 and was refused on 28 June 2017.
The Council officer's assessment report is in Exhibit 2 at Tab 25. In this report, the officer states that a lack of clarity in the application and supporting documentation precluded making proper assessments of critical parts of the application.
Mr Wright SC, for the Respondent, notes in his submissions (at paragraphs 7 and 8) that: "7 Throughout the course of the proceedings, the Applicant has continually provided further information in support of the development application. The Council, through its officers, has expended an inordinate amount of time and public resources in responding to this continual flood of further information. 8 Despite the significant time that has passed since the application was filed, the prolonged conciliation conference and the continual conferencing between experts, the Applicant has still failed to demonstrate that it can create a subdivision for residential purposes that has adequately addressed these constraints inherent in the site in compliance with the Council's controls."
The flow of new information continued during the hearing with amendments to a number of expert reports (and, for some, amendments to amendments), and, almost at the death, the appearance of a substantial amount of data, previously unconsidered, relating to possible contamination of the site.
To respond to these new data and to clarify some other issues, it was necessary for the Applicant to seek to amend the application at the hearing on 6 February 2019. I granted leave.
The flow of information continued even after the end of the hearing. On 8 February 2019, BioBanking agreement ID No. 422, under the Threatened Species Conservation Act 1995 (TSCA) was signed between the Minister for the Environment and the landholders of The Huntley (being the VIG group of companies) ('The Huntley' is the name of the larger area of which the land the subject of the application is part). A draft of the agreement, dated November 2017, had been admitted as Exhibit H. The signing of the agreement has no direct relevance to the decision-making process in this matter, but the draft version is mentioned in a number of the proposed conditions which require fencing between the BioBanking site and the development. The BioBanking agreement does not apply to any of the areas the subject of DA 2016/1019, but to other parts of The Huntley. The identification of areas subject to the BioBanking agreement in close proximity to the proposed development emphasises the significance of the area for biodiversity conservation, and hence the need for careful assessment of environmental impact. The signing of the agreement is also indicative of the wider consultations which have been occurring over a long period, and that bringing matters to a conclusion is not a speedy process.
Mr Wright, during the hearing, several times expressed concern about the proceedings becoming 'a movable feast'. While the matter has been unusual in the number of changes that have occurred and the length of the process, seeking to resolve matters by negotiation is to be encouraged, although there must be limits to the length of the period it takes and the cost involved.
Two days after the refusal of DA-2016/1019 was issued, a Class 1 application was filed in respect of deemed refusal of the development application.
On 1 November 2017, a s34 conciliation conference commenced on site. I presided over the conference.
The conference started on the Site-South, (i.e. south of Avondale Road), where the proposals were outlined by the Applicant and some of the experts. The Martins, who had made written submissions following the public notification of the proposal (the submissions are in Exhibit 2, Tab 31), are adjoining landholders, and some of the streambank stabilisation works proposed are on part of Lot 18 DP 3083, which is part of the Martins' property.
During his oral presentation, Mr Martin outlined some of the flood events which Mullet Creek had experienced. His written submission was illustrated with images of a recent flood event, with Mullet Creek in spate. He stressed that because of the location future floods were inevitable. An issue raised in the written submission was that Mr Martin held a water licence permitting extraction of water from Mullet Creek for farm use. He emphasised the importance of maintaining his access to the pump and his continuing use of it as part of his farming operation. He also addressed the heritage significance of the area for both the Aboriginal community and for European history.
The parties and their experts then moved on to Site-North where various features were explained and particular attention was played to Mullet Creek and the riparian corridor.
At the commencement of the hearing in Court in November 2018, the Applicant showed imagery taken from a drone, which provided an overview of the site and its surrounds (Exhibit Q).
After completing the inspection, the parties adjourned to Wollongong City Council chambers, where discussions occurred between the experts. After a number of mentions of the matter in the following months, a further meeting of experts was held in Wollongong on 16 March 2018. As there appeared to be no prospect of a resolution of issues in the short-term, the s34 conference was terminated.
On 22 August 2018, the Applicant was granted leave to rely on amended plans. The plans and associated documents were tendered at the hearing as Exhibits A and B.
After the first version of the proposal had been received, Council had made internal and external referrals, and had conducted, as required, a public notification process.
After the termination of the s34 process, the Council recommenced the referrals and notifications.

Statutory controls

The relevant statutory controls are documented in the Amended Statement of Facts and Contentions (ASOFC) (Exhibit 1) at paragraphs 48 - 110, from which key elements are discussed below.
The applicable local planning instrument is the Wollongong Local Environmental Plan 2009 (WLEP) which is supported by the Wollongong Development Control Plan 2009 (WDCP).
The Huntley site as a whole contains land in the R2 Low Density Residential zone, the RE2 Private Recreation zone, the E4 Environmental Living zone, the E3 Environmental Management zone and the E2 Environmental Conservation zone. The distribution of lands in the different zones is shown in the land zoning map - sheet LZN_004 (Exhibit 2, Tab 4).
The land to which the proposal applies is predominantly in the RE2 zone, which is the zone applying to the proposed golf course and R2 where the housing precincts are situated. A number of the future housing lots are split zoned, with both RE2 and R2 components. (A small part of Lot 18 DP 3083, land in which some stream stabilisation works will occur and which is not part of the Applicant's land, is zoned RU2 Rural Landscape). The northernmost of the proposed housing precincts (Stage I North) has boundaries with RE2, E2 and E4 zoned land.
The objectives of the R2 Low Density Residential zone are: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. and the zoning table provides that 2 Permitted without consent Home occupations 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental facilities; Exhibition homes; Exhibition villages; Group homes; Health consulting rooms; Home-based child care; Hospitals; Hostels; Information and education facilities; Jetties; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Residential flat buildings; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing; Shop top housing; Signage; Tank-based aquaculture; Veterinary hospitals 4 Prohibited Any development not specified in item 2 or 3
The objectives of the RE2 Private Recreation zone are: Zone RE2 Private Recreation 1 Objectives of zone • To enable land to be used for private open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment and the zoning table provides that: 3 Permitted with consent Animal boarding or training establishments; Aquaculture; Boat building and repair facilities; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Centre-based child care facilities; Community facilities; Entertainment facilities; Environmental facilities; Environmental protection works; Extensive agriculture; Function centres; Kiosks; Markets; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Respite day care centres; Restaurants or cafes; Roads; Signage; Take away food and drink premises; Water recreation structures 4 Prohibited Any development not specified in item 2 or 3
Clause 7.4 Riparian Lands of the WLEP states: 7.4 Riparian lands (1) The objective of this clause is to ensure that development does not adversely impact upon riparian lands. (2) This clause applies to land shown as "riparian land" on the Riparian Land Map. (3) Despite any other provision of this Plan, development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land.
The Riparian Lands Map shows, on the subject land, Mullet Creek and tributories (WLEP map sheet CL 1_004 Exhibit 2, Tab 13).
Earthworks are proposed in parts of the development, most extensively in Stage I North. Clause 7.6 of the WLEP applies: 7.6 Earthworks (1) The objectives of this clause are as follows: (a) to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land, (b) to allow earth works of a minor nature without separate development consent. (2) Development consent is required for earthworks, unless: (a) the work is exempt development under this Plan, or (b) the consent authority is satisfied the work is of a minor nature. (3) Before granting development consent for earthworks, the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or of the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material or the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or other relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.
WDCP applies to the site. This is a comprehensive document divided into a number of chapters.
Chapter D16 West Dapto Release Area applies to a large area of land west of Dapto which has been identified as an area where extensive urban development will occur. The chapter applies to the site.
I note that included within Chapter D16 is Figure 6.3.8.1 Avondale Road North, Huntley Neighbourhood Plan. The current Neighbourhood Plan for the site. Source: Wollongong DCP 2009 (version current in December 2018)
Wollongong City Council resolved on 3 August 2015 to adopt the Huntley Avondale Road Neighbourhood Plan as an amendment to Chapter D16 of the WDCP, and Figure 6.3.8.1 appears in WDCP in its currently available form. An enlarged version of the plan appears in Exhibit A, Tab 2(B) which shows that the map was created by Urbis on 29 July 2014.
The layout shown in Figure 6.3.8.1 indicates three residential precincts, in roughly the same locations as in the present proposal but with different lot layouts, with access to Stage I North and Stage I East being from Cleveland Road rather than Avondale Road, and with fewer detention ponds. The number of lots in the Neighbourhood Plan is higher than in the current proposal. The Neighbourhood Plan shows that the intention for residential development on the site has been known for a long time, and that over the years, the proposal has been reworked to its present form.
The WDCP, in Chapter E15 Water Sensitive Urban Design, demonstrates Council's intent to promote Water Sensitive Urban Design (WSUD), a concept which Mr Robertson SC highlighted as something that is strongly endorsed by the Applicant, and which is reflected in the design for the proposal.

The proposal

The site is an irregular shaped area bounded to the south by Avondale Road and to the east by Cleveland Road.
The proposal has been identified by the Applicant as being for the Stage I subdivision within the larger Huntley site and includes a community title subdivision to create 99 residential lots and one community title lot, one residual Torrens title lot, earthworks, civil works, landscaping, installation of utilities and amendments to the layout and landform associated with the previously approved golf course.
The residential component of the proposal is divided between three residential precincts - Stage I North will consist of 65 residential lots and occupies the steepest part of the site, Stage I East would be 26 residential lot and Stage I South will have eight lots and an Aboriginal cultural heritage centre and keeping place. Although Stage I East, on the eastern side of the site is adjacent to Cleveland Road, there will be no access to Cleveland Road; access to the site will be from Avondale Road.
It is proposed that the residential lots be community title (Community Land Development Act 1989) and the management of the community scheme will be through a Community Association (Community Land Management Act 1989). The roads within the site will be open access - although they will be part of the community title and be managed and maintained by the Community Association, members of the public (and service vehicles such as garbage trucks and emergency service vehicles) will have unrestricted access to the site from Avondale Road and the roads will present as a continuation of the public road.
The proposal is for subdivision and associated works but not for any dwellings. However, the Applicant's intention is that the lots will be sold as land in the house packages, and a portfolio of house designs is presented in Exhibit B, Tab 2. The arrangement for the houses was discussed during the hearing in the following terms: "ROBERTSON: Just assume that the product here, if I can use that expression, will be constrained by a particular design framework that the applicant has put forward. The fact then that some of the lots are constrained is simply something that the applicant accepts and is able then to produce a design to meet that smaller building envelope. If that's the case and if the consent is conditioned to require that kind of concept design, then there won't be the difficulty that you face on other sites with the market driving the need to flatten and expand the building area of the land, will there? WITNESS HEAVEN: And again sort of going back to my expertise not being a house designer or, there's probably two issues here. One is whether or not those house designs as presented are consistent with the land form. That I can't answer. But it's inherent in any site that's heavily constrained that it's a little bit of a buyer beware scenario. So if you buy into there, I'm assuming that you're buying into their understanding what the constraints are and what you need to deal with. ROBERTSON: Mr Williamson, have you got anything to add to that? WITNESS WILLIAMSON: I do not. ROBERTSON: There is, Commissioner, behind tab 8 in exhibit B, a housing concept design check list. And then an indication of the different types of houses proposed for each of the lots. Those houses are specifically designed to deal with land form changes, although they're shown on the plans, on each of the plans, and each of the dwelling types are indicated. Now obviously this is conceptual, but a genuine attempt has been made to mix and match particular designs of dwellings to particular sites. And that was done as well to demonstrate various forms of shadow analysis. In any event, the exercise was undertaken on each lot to see-- COMMISSIONER: If a purchaser was quite taken by one of these designs and wanted to construct something that's in here, do detailed architectural designs exist that would enable construction, or? ROBERTSON: We going to build it. We're not selling, we're not selling land blocks. We're going to build the, each of the houses and sell the land and house as a package. And the design, I think the house designs had been done by the architect. But the intention is that once the subdivision and earthworks DA is granted, then we'll come back with a second DA, or perhaps a CDC, depending on whether council makes a DCP enabling us to do it that way. With a complete design, we'll design out the whole of the site and we'll build it. And we're prepared to accept if necessary a restriction to that effect in the development consent, which ensure that we'll keep control of the site and implement the engineering plans. The problem which I think Mr Heaven's adverted to is that a sub-divider comes along, does the earthworks and subdivision, and then sells the land instead of building And so someone else comes in who hasn't had any of the experience of the design process and wants to maximise the square meterage of the house on the site. And that sometimes is contrary to the original design concept. By doing everything ourselves, we keep control of that. COMMISSIONER: Right, so the discussion, what people want, is constrained by the fact that you've got to tell them what they're going to get. ROBERTSON: Correct. That's correct. WRIGHT: Well in a commercial sense. I'm not sure that's going to be the case in a development control sense. ROBERTSON: Well it's a matter for council. If they wish to propose a condition, we'd probably accept it, even if that condition is more severe or more constrained than in other subdivisions. Because the whole point of this is that this is just one part of a much larger land parcel, and we're producing an 18-hole golf course of an international standard, and we expect to have international visitors from around the world. And we need to provide that element, the tourist element of the development, and the residential will hopefully pay for it. I mean from a financial or commercial point of view, that's the intention. But the golf course goes hand in hand with the marketing, if you like, of the produced product. So anyway, that's the idea…" (Citation of Mr Williamson, expert for the Applicant and Mr Heaven, for the Respondent - Tcpt, 23 November 2018, p 28(29-50), p 29(1-49))
The Illawarra Escarpment ("Escarpment") is an impressive landscape feature which forms the western backdrop to the Illawarra Coastal Plain. North of Wollongong, the Escarpment is close to the coast but as it trends to the south-west, the Coastal Plain widens. The position of the subject site in relation to the Escarpment is shown in Figure 2 in Exhibit A, behind Tab 2. The site is approximately 17km south-east of Wollongong. The Escarpment is represented by the grey line, trending north-east to south-west to the west of the site. Source: NearMap
The Escarpment generates its own local weather conditions, including high rainfall episodes potentially leading to flood events below the foot of the Escarpment. The occurrence of such events is one of the challenges that any development in the area must face.
The development application which is the subject of these proceedings is referred to as Stage I of an integrated golf resort and residential estate to be known as "The Huntley". The larger planned estate will, subject to approvals, "include a championship golf course and associated facilities, including clubhouse, with golf lodge accommodation and biomechanics and sports education centre" (Exhibit A, Tab 2, section 1.0), as well as villas and future stages of residential subdivision and housing.
The DA is for approval for earthworks and civil works, subdivision, landscaping, utilities and stormwater infrastructure with proposed residential development of the Stage I site. The location of the area the subject of the DA, and its relationship to the total Huntley site is shown in Figure 1 in Exhibit A, Tab 2. The subject site and the overall Huntley release area Source: NearMap
The Stage I site is bounded to the south by Avondale Road, and to the east by Cleveland Road.
The utilities referred to in the brief description given above will be situated wholly within the site. The provision of utilities to the boundary of the site gave rise to a major contention between the parties, which will be discussed later in this judgment.
The site was previously part of the Huntley Colliery between 1946 and 1989. Coal mining has ceased and the proposed development of the overall site includes rehabilitation of those parts affected by former coal mining operations.
In 2011, the Southern Joint Regional Planning Panel approved DA 2009/1037 for the construction of an 18 hole championship golf course and clubhouse, golf lodge accommodation and sports and education centre. Two modifications to the consent have been approved subsequently by the Council (DA-2009/1037/A on 31 May 2011 and DA-2009/1037/B on 13 September 2013). The first of the modifications was a change in the wording of Condition 89, and the second involved the relocation of the access road to the clubhouse and consequent repositioning of associated buildings and car parking, and relocation of golf holes and tree removal.
Construction works relating to the golf course approved in DA 2009/1037/B have subsequently commenced south of Avondale Road.
DA 2016/1019 sought consent for subdivision and associated works for eventual residential development overland the contained part of the golf course approved by DA 2009/1037. Subsequent to the granting of DA 2009/1037, there were amendments to zone boundaries in parts of the land containing the proposed golf course, with the effect that the area of residential zoned land was increased, creating inconsistency between the proposed golf course and the land zoning. The residential subdivision proposed in DA 2016/1019 is consistent with the current zoning of the land.
Consequently, it will be necessary to change the layout and location of the approved golf course holes north of Avondale Road so that the golf course does not encroach onto land zoned for residential development. Modification of the layout is also required to address impacts of the proposed access road to Stage I which crosses the golf course, and to incorporate stormwater detention basins. Some bulk earthworks are also proposed on the golf course north of Avondale Road, so that modifications of conditions of consent in DA 2009/1037 which currently exclude bulk earthworks will be required.

Is there owner's consent for making the development application?

When the Applicant first submitted the development application to Council, the proposed development was specified as occurring on various parcels of land, all within the ownership of the Applicant.
By the time the hearing of the matter commenced in November 2018, further investigation had taken place both to establish the nature of bank stabilisation works required along Mullet Creek and to determine the areas within which those works would need to occur.
Mullet Creek flows in a generally north-easterly direction across the site. At the north-east corner of the site Lot 2 DP 549152, which is owned by the Applicant, adjoins Lot 18 DP 3083, which is not within the Applicant's ownership. The boundary of Lot 18 DP 3083 is of an irregular shape, and the bed of Mullet Creek is included within the lot. In its final form, the application before the Court requires that some of the bank stabilisation works proposed are within Lot 18 DP 3083.
The development application before the Court thus encompasses proposed works to be carried out on land in the ownership of two entities - the majority of the site being owned by the Applicant and Lot 18 DP 3083 by C. & M. A. Martin Pty Limited.
An environmental planning instrument may require that certain forms of development may not be undertaken on land except with development consent (s 4.2(1) of the EP&A Act), with consent arising from a determination of a development application. If the development proposed is categorised as a type of development which, in the zoning table of the applicable local environmental plan, is permissible with consent by virtue of the zoning of the land on which the proposed development will be situated, then the proponent must cause a development application to be submitted to the relevant consent authority.
Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) provides that the development application must be made: 49 Persons who can make development applications (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land.
A development application is required to include the relevant information specified in cl 50(1)(a) of the EPA Reg: 50 How must a development application be made? (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1 …
Schedule 1 of the EPA Reg specifies in Part 1 C1 information that is to be contained in a development application: Part 1 Development applications 1 Information to be included in development application (1) A development application must contain the following information: (a) the name and address of the applicant, (b) a description of the development to be carried out, (c) the address, and formal particulars of title, of the land on which the development is to be carried out, … (i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation …
Without owner's consent, a development application is incomplete and cannot be determined (Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (Al Maha); Stokes v Waverley Council [2019] NSWLEC 1137).
The 'land to which the development application relates' encompasses all parcels of land on which work or activities are proposed; thus, as in the present circumstances, consent from more than one owner may be required. Owners' consents in relation to the application were included in Exhibit 13 at Tabs 5 and 6.
At the commencement of the hearing Mr Robertson acknowledged that owner's consent for work on Lot 18 DP 3083 had not been obtained, but discussions between the Applicant and the owners of Lot 18 were in progress and the consent would be forthcoming.
However, "the failure of the development application to contain evidence of the owner's consent at the time it is made does not render the development application invalid or void" (Al Maha at [96] per Preston CJ of LEC). The defect can be cured at any time up to immediately before a consent authority determines the application.
During the course of the hearing a letter written on 10 December 2018 over the signatures of Robert and Elizabeth Clare Martin, directors of C. & M. A. Martin Pty Ltd was tendered (Exhibit LL). This was in the following terms: "C. & M. A. Martin Pty Limited is the owner of the land Lot 18 DP 3083 which adjoins Lot 2 DP 549152, part of the site the subject of the proposed development. We understand that the applicant is proposing to undertake bank stabilisation works to a portion of Mullet Creek the subject of the proposed development described above. C. & M. A. Martin Pty Limited hereby gives its consent to the lodgement/making of development application DA-2016/1019 by or on behalf of Visionary Investment Group Pty Ltd, which involves the carrying out of bank stabilisation works to a portion of Mullet Creek located in the south eastern corner of Lot 18 DP 3083, in conjunction with the proposed development described above. This letter of owner's consent is given pursuant to clause 49 of the Environmental Planning and Assessment Regulation 2000. This letter of owners consent authorises the making a determination of the development application, but does not of itself authorise the carrying out of any works upon or within our land, as any such physical works are to be the subject of a separate prior written agreement between ourselves and the developer, including suitable conditions and indemnities in our favour."
The third paragraph of the letter gives consent to the making of the development application pursuant to cl 49 of the EPA Reg.
The fourth paragraph, however, on its face goes further. It authorises the determination of the application. The process leading to a determination requires owner's consent for the making/lodging of the application; the making of the determination by a consent authority does not require authorisation by any other party. If consent is granted that which is consented to must be related to what was in the original application. The granting of consent would not, in any way, reduce the rights of the Martins as property owners. There would still be a need for the Applicant and the owners to conclude an agreement permitting the Applicant access to the land, and this might impose conditions. If the owners do not reach agreement on access, the consent could not be acted upon. As part of the negotiations, the owners could not alter the approval - if agreement could only be reached if changes were made to the proposal then it would be necessary for the Applicant to separately make an application seeking to alter the consent.
I conclude that the third paragraph of the letter constitutes the required owner's consent; the matters in the fourth paragraph of the Martins' letter are additional to, and not part of the owner's consent and thus the necessary prerequisite for consideration and determination of the application has been met. The situation differs from that in Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212 ("Mulyan") where Lloyd J concluded that an owner's consent purported to have been given by Mulyan was not a consent. In Mulyan, the landowner provided a document which gave the second respondent consent to submit a development conditional upon the second respondent having been successful in litigation against Mulyan in a different court (the Equity Division of the Supreme Court). Mulyan also raised three proposed conditions of consent said to be conditions precedent to making the development application (involving additional works). Lloyd J found that a conditional consent was not a consent, but that the owner could have withheld consent.

The evidence

Joint reports of experts were tendered in a number of areas of expertise: Area of Expertise Applicant Respondent Visual Impact Philip Pollard Vivian Lee Planning Paul Robilliard Vivian Lee Flooding and Stormwater Drew Bewsher Mathew Carden Civil Engineering David Williamson Andrew Heaven Ecology Lucas McKinnon Brett Morrisey

The joint reports deal with matters which were put forward as contentions. Before reaching that stage, experts from much wider fields also had input. The inputs from those experts helped to define the application. In this regard, I note that issues of relevance to the Aboriginal community have been discussed in detail, leading to the inclusion within the application of a proposal for an Aboriginal keeping place, while a detailed geomorphological investigation of Mullet Creek (carried out after the commencement of the s34 process) informed the consideration of the flooding and storm water issues discussed by Mr Bewsher and Mr Carden. Geotechnical advice was also provided to the parties on matters related to the civil engineering works, including during the course of hearing; the geotechnical experts were, however, not required to give evidence.
The authors of the joint reports in two areas - visual impact and planning - were also not required to give evidence.
Mr Pollard and Ms Lee in the first visual impact joint report (Exhibit 5) agreed that, in terms of visual impact, the critical part of the proposal were the works proposed for the northern part of the site, and also that, in order to make an assessment, additional photomontages were required as well as further details of the earthworks.
In this second report (Exhibit 6), after considering the additional information provided, the experts were in agreement that the visual impacts were acceptable. This agreement was not unconditional, it was based on what was, at the time they produce the report, proposed, but if discussion between the engineering experts resulted in more than minor changes to the earthworks, that conclusion might be altered. However, neither party raised any questions of new referral to the visual impact experts following the hearing of the concurrent evidence of the engineers.
The planning experts prepared two joint expert reports (Exhibits 3 and 4). These canvas a number of topics about which the experts did not agree. However, substantive matters of disagreement relating in particular to provision of services, off-site impacts (particularly those of an ecological nature), and the earthworks were discussed in more detail in the other expert reports and in submissions.
The experts in what might broadly be referred to as engineering, encompassing the earthworks, provision of services and works on Mullet Creek, were sworn in as a group - Mr Williamson and Mr Bewsher for the Applicant and Mr Heaven and Mr Carden for the Respondent. It was agreed that in view of the changes that had occurred during the course of proceedings that the joint reports relevant to the engineers were Exhibits X (supplementary joint report of Mr Carden and Mr Bewsher), Y (supplementary joint report of all four experts) and Z (amended joint report of Mr Heaven and Mr Williamson). It is convenient to first discuss the flooding and storm water issues associated with Mullet Creek which were covered by Mr Carden and Mr Bewsher.

Flooding and Stormwater

Although Mr Bewsher was also involved in the discussions over drainage associated with the earthworks, he had a history of work on Mullet Creek in association with the Council and had been engaged by the Applicant as a result of criticism by the Respondent of earlier studies by the Applicant on the flooding issues.
Drainage and flooding issues are matters for consideration in the assessment of many development applications, but assume particular importance for development within the City of Wollongong, given the influence of the Escarpment in generating high-intensity rainfall events with consequent high run-off.
Clause 7.3 of the WLEP sets particular objectives for management of flooding and sets a condition precedent (cl 7.3(3)) requiring a consent authority to have satisfaction on all of the matters (cl 7.3(3)(a)-(g)) before consent can be granted for a development to which the clause applies 7.3 Flood planning (1) The objectives of this clause are as follows: (a) to maintain the existing flood regime and flow conveyance capacity, (b) to enable evacuation from land to which this clause applies, (c) to avoid significant adverse impacts on flood behaviour, (d) to avoid significant effects on the environment that would cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, (e) to limit uses to those compatible with flow conveyance function and flood hazard. (2) This clause applies to: (a) land identified as "Flood planning area" on the Flood Planning Map, and (b) other land at or below the flood planning level. (3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied in relation to all the following matters: (a) all habitable floor levels of the development will be above the flood planning level, (b) the development will not adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, (c) the development will not significantly alter flow distributions and velocities to the detriment of other properties or the environment of the floodplain, (d) the development will not affect evacuation from the land, (e) the development will not significantly detrimentally affect the floodplain environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, (f) the development will not result in unsustainable social and economic costs to the community as a consequence of flooding, (g) if located in a floodway area - the development will not be incompatible with the flow conveyance function of, or increase a flood hazard in, the floodway area.
Mullet Creek runs diagonally across the southern part of the site, and areas on both sides of the creek are below the flood planning level and therefore fall within the ambit of cl 7.3.
The Applicant had carried out extensive studies on Mullet Creek and its surroundings in order to demonstrate satisfaction of cl 7.3(3).
The numerical modelling of flood conditions in Mullet Creek had been carried out for the Applicant by Water Technology. The applicability of the model was debated between Mr Carden and Mr Bewsher at considerable length. Central to Mr Carden's concerns were the appropriate Manning's roughness values to be included in both pre- and post-development models. The roughness values (also referred to in the literature as Manning's n or Manning's coefficient) are empirically derived values used in Manning's formula to calculate average velocity of flow in channels. The Manning's values will depend inter alia on the nature of the vegetation cover. Mr Carden emphasised that the channel and its surrounds were complex with different vegetation in different geomorphological components of the landscape. Flood characteristics would also be affected by depth and sinuosity of the channel.
Mr Carden and Mr Bewsher remained adamantly apart in their views. However, Mr Robertson, in order to make progress, agreed to seek his client's approval for the commissioning of further modelling using a range of Manning's values agreed between Mr Carden and Mr Bewsher, and incorporating sensitivity tests on the consequences of variation in the Manning's values of ± 20% on flood impact.
The modelling results predicted flood storage (detention), maximum water levels in peak velocity under five year ARI and 100 year ARI events as well as the Probable Maximum Flood (PMF) event and changes to these parameters with variation in the roughness coefficients.
Results were provided to the parties in a memorandum from Water Technology dated 10 December 2018 (Exhibit MM). The results were considered by Mr Bewsher and Mr Carden, and an email chain of correspondence between them was tendered as Exhibit NN.
Mr Carden agreed that the additional modelling satisfied the concerns in Contention 6 (The flood impact assessment does not reflect development condition flood storage and flood impacts). In relation to Contention 7 (The flood impact assessment predicts increases in flood velocities on adjoining land as a result of the development), the modelling results show an increase in flood velocities on site and outside the site. Mr Carden agreed with the information in the emails that there was no risk of erosion occurring in grassed areas east of Cleveland Road, and the impacts within the site and in Lot 18 DP 3083 would be adequately mitigated by the proposed bank stabilisation works.
Mr Carden proposed a condition which, in essence, required appropriate design for the stream works to be reflected on the Construction Certificate plans prior to release of the Construction Certificate.
If that were done, Mr Carden considered that Contention 7 was resolved.
Achievement of the outcomes predicted by the model will be dependent on the achievement of the vegetation cover proposed in the Vegetation Management Plan, and ongoing maintenance of the vegetation - matters appropriately dealt with by conditions.
In view of the agreement between Mr Bewsher and Mr Carden, and from my reading of the reports, I am comfortably satisfied in relation to the matters in cl 7(3) of the WLEP.

Civil Engineering

The proposal involves a number of earthworks, but those which are the subject of contention relate to the site development works for the northern part of the development. This is the steepest part of the site, and the works will be required to make landforms suitable for the building of roads and to create blocks for constructing the residences. In addition, this part of the development also includes a recreation area refer to as the Escarpment Park.
The principal issues raised by the experts relate to batters and retaining walls, where concerns related to stability of the landforms, and to drainage, with the need to avoid local pondage. Part of the exchanges involved the clarification and interpretation of the drawings (reading the plans was, in the form presented, sometimes difficult).
Mr Williamson indicated that "The design will change between DA and CC as a matter of design development" (Tcpt, 22 November 2018, p 85(46 - 47)) and that: "The position with design is always that we present for the DA what can be achieved, not how it's going to be achieved. We've - I believe that we've demonstrated - that this development can be achieved and in CC will demonstrate how." (Tcpt, 22 November 2018, p 85(1-4)) In the discussions, a number of particular lots were identified where adjustments could occur and in some cases would be necessary.
Mr Heaven, for the Respondent, agreed that as result of ongoing investigations there would be further changes to the details: "There could be some changes to the batters. There might be some localised changes to the extent of the earth works. The question about how far that extent would be, it may be minimal and in some blocks it may extend many metres into other lots. Is that a big problem? On face value I don't think it's a huge issue for this particular contention…" (Tcpt, 22 November 2018, p 87(34-38)).
He continued: "I think the key here is - my biggest concern has been - my experience with concept plans is the ability of the certifier to dig into particular issues so the idea of getting this concept plan is to get a gauge on the extent of the potential works but also to provide some targeted conditions to deal with these particular issues". (Tcpt, 22 November 2018, p 87(43-47))
The Escarpment Park plan had been prepared by the Applicant's landscape consultant. There was agreement among civil engineers that this plan required redrawing to adjust levels to be compatible with the road levels.
Mr Williamson and Mr Heaven gave evidence on Day 4 in which they addressed specifically matters where the planners, in their joint report (Exhibit 3), were in disagreement. The extracts from the transcript quoted below demonstrate the range of issues addressed by the civil engineers and the extent of agreement between the experts. The first topics relate to the lot layout and road design (the two being related because of the necessity of providing road access to the lots) and landform. Landform and road design also interact in relation to surface drainage. "ROBERTSON: I propose to ask the engineers some questions about matters that the planners raised or a planner has raised. The joint planning report is exhibit 3. Do the witnesses have that report? Thank you. Can you just go to 5.3 on page 8? This is an issue that you dealt with together in your report. It's not at page 8, where there was agreement that a satisfactory response had been provided to 5.3. However, I've been informed by my friend your Honour that this is contentions not being resolved and that it proposes to put the matters in the - said by his planner in response to 5.3. Can I ask you, Mr Williamson, does the design of the proposed subdivision in regard to lot layout and road design, take into account the topography and natural land form of the site? WITNESS WILLIAMSON: Yes. ROBERTSON: Could you explain to the Court how it does that? WITNESS WILLIAMSON: I can explain perhaps better by exception. If the site was strictly in compliance with council's DCP, the lot gradients would be a minimum of 15% and there would be retaining walls all the way up the slope, taking into account approximately 20 metres of elevation loss. We wouldn't be cutting and filling more across the site to comply with the DCP to try and get - and I'm being diagrammatic, I apologise, but to try and get lots to grade towards the road. I'm trying to create that environment on a hillside that slopes like that, wouldn't be respecting the land form. What we have instead is an environment that works with the land form where the housing steps up the hill, if you will, more in line with areas such as Kiama on the south coast areas of Wollongong, where there are steel land form. If you look at Palm Beach, Northern Sydney, if you look at Cape Town, as an international city, that's the kind of environment that we're looking for, working with the land form, working up the land form, rather than fighting it. ROBERTSON: Right. One of the criticisms made by the planner is that there are significant level differences. Is that something which is a product of the land form or is it a product of your design? WITNESS WILLIAMSON: It's a reasonable compromise in trying to achieve a subdivision on the slope that we're working with. In terms of our joint report, we generally concluded that it is a reasonable compromise. ROBERTSON: All right. Do you agree with that, Mr Heaven? WITNESS HEAVEN: I do. ROBERTSON: The 5.4, if you just turn to page 10 of the joint planning report, it's a good location to look at it, it says: "The proposed roads for the proposal, notably the access roads located within stage 1 north have not been designed to respond to the existing land form associated with significant cutting or fill, causing the road significantly higher above than the proposed residential lots, up to approximately 8 metres in some instances". I'm just wondering whether that was correctly transcribed, because it doesn't make much sense. WRIGHT: I think there's a few typos in there ROBERTSON: But as I understand it, the criticism is that there's cut and fill and that you have residential lots that are much lower than the roads and up to 8 metres in some instances. I don't think the 8 metres is correct, frankly, but you can-- WITNESS WILLIAMSON: Well, whether it is or isn't, it is a fact that there are lots that are below the road and there are lots that above - that are above the road and that's a feature of building a road on a land form. In this environment, we have a maximum limit on our road of 20%, whereas in some cases, the land form runs to 30%. You've got to take that difference up somewhere and that occurs in the lots. ROBERTSON: Mr Heaven, do you agree with that? WITNESS HEAVEN: I do. ROBERTSON: Yes. There is an illustration in the planning report which I think is taken from one of the joint reports, maybe yours. Perhaps the hydrologist did this. There's AA - yes, it's from the hydrologist report, the stormwater report. There's a section AA on page 11 and on page 12, that section is shown as a cross-section. I think there's some exaggeration because of the difference between the X and Y arms of the graph. So it's not the reality, as it were, but it shows us, if I can just read this off, that at - this is the road supported across the slope where the natural level is say 72.5 and then the road sits at almost 77. I think that's what it's said to illustrate. WITNESS HEAVEN: Broadly. ROBERTSON: And then it falls to about 75, when it again meets the natural slope of the land. Of course one would need to elongate the horizontal to get a realistic portrayal of that. But this is said by the - the planner says: "The cross-section depicts the approximate difference between existing and proposed levels. Figure 2 below is" - I'm just reading from page 10, "Figure 2 below is an example of cross-section AA taken across proposed lot 359 and 361. While it's noted that the proposed lot boundaries and road are not marked on this cross-section, it can be reasonably assumed that the road is the extent of the horizontal red dotted line. The blue solid line shows the existing levels and the red dotted line the proposed levels. From this cross-section you can infer that the road is approximately 4 metres higher than the lowest point in the proposed lot and the extent of fill to create the road. The batters from the road to the proposed lots are identified. The two other cross-sections", and then it goes on. Is that the most extreme point of height differences? WITNESS WILLIAMSON: No. ROBERTSON: Right, but it's one such point. Why is the road designed like that? WITNESS WILLIAMSON: If you take any points in isolation, you can poke holes in a design. This is a design that takes into account a range of factors that are at times competing with each other. Taking this particular example, the area - using that same figure, the - between lot 361 and 362, which is at the top of that figure, that is a stub road. It's a matter of a separate contention that's been resolved, but that stub road needs to tie into existing ground level. The road between lot 360 and 359 needs to-- ROBERTSON: Sorry, why does the stub road have to meet existing ground? WITNESS WILLIAMSON: That is good engineering design practice at the termination of the development. ROBERTSON: Do you agree with that, Mr Heaven? WITNESS HEAVEN: Yes. WRIGHT: I'm sorry, Mr Williamson, I just didn't quite catch the whole of that sentence? WITNESS WILLIAMSON: Good engineering practice at what I call termination of the development. So at a boundary position. WRIGHT: It was the termination bit I missed and that's why I wanted to make sure I was clear. If I could just - you agree with that, Mr Heaven? Essentially what that means is it's where it ties into the land at the north? WITNESS WILLIAMSON: That's correct. WRIGHT: And it's land form, right? WITNESS HEAVEN: No, I do agree with that, because, you know - particularly with separate ownership, it doesn't pose undue restrictions on the adjoining property owners, particularly when you don't need to-- WRIGHT: What you're really trying to say is, as I understand it, in terms that I can understand it as a layman, is that you're not creating a possible adverse consequence for the adjoining land or its future development potential, is that what you mean? WITNESS HEAVEN: From my view, yes, that's one of the benefits of it. WRIGHT: All right. WITNESS WILLIAMSON: I agree. So continuing, the road between lot 360 and 359, which is north road 4, that road is currently grading at 20%, which is the maximum allowable, because it needs to grade up from north road 2 to north road 3. North road 3 leads into a potential future stage, that needs to tie into natural level at or near the end of the work. ROBERTSON: North road 3 being the road-- WITNESS WILLIAMSON: The road, the road that continues to the west of lot 362 to 359. ROBERTSON: Yes, thank you. WITNESS WILLIAMSON: So generally, what we have is an environment where we've three or four points where we need to tie into an existing ground level and the result of maximum allowable grades that are shallower than the existing natural land form means that at some point we have to take up a level difference. That's unavoidable. ROBERTSON: That's the example that the planner gives, I won't take you to-- WITNESS WILLIAMSON: I wouldn't mind adding that that issue was actually the result of the - I think it was exhibit ZZ, it was the additional plan that was tabled by us yesterday. ROBERTSON: Let me find that plan. BB, exhibit BB. WITNESS WILLIAMSON: And that area was resolved, the common-- ROBERTSON: Can you just wait until we find BB? Does everyone have BB, Commissioner? COMMISSIONER: Yes. ROBERTSON: Okay, sorry, you go on. WITNESS WILLIAMSON: That are was generally resolved in discussion, particularly lot 347 where we agreed that additional design towards CC would normally resolve some of the issues that were identified by council in that area. ROBERTSON: Those were drainage issues, I think? WITNESS WILLIAMSON: They, they were, yes. ROBERTSON: All right, thank you. COMMISSIONER: Just before we leave the section, just from my understanding, where the actual road is, is that the cambered section and the bits that go down to it are the verges or-- WITNESS WILLIAMSON: If you're referring to section AA? COMMISSIONER: Section AA, yes. WITNESS WILLIAMSON: Correct. The road is the centre section. If you look at the X axis it's roughly between 30 and 45. COMMISSIONER: Yes. And you would have very sharp edges to the top of the batters? WITNESS WILLIAMSON: The batters in this case are exaggerated. The X scale is exaggerated, it wouldn't - it will look flatter if you drew that at a natural scale. So they do appear steeper, but they are quite steep on their own. COMMISSIONER: Yes, thank you. And the drainage from the road, there would be some sort of drain along the edge of that verge, would there? WITNESS WILLIAMSON: That is correct. On - if you have the engineering drawings, which were attached to the DA submission. ROBERTSON: Yes, let's just pull them up. Exhibit A-F, tab F. WITNESS WILLIAMSON: You would be looking for plan C005. COMMISSIONER: Yes. WITNESS WILLIAMSON: And with the detail in the top left of that plan entitled "Road type 1 stage 1 north 10 km/h shared zone". ROBERTSON: Right. WITNESS WILLIAMSON: That gives you a profile of what you'd expect to see as the road. COMMISSIONER: With dish drains either side? WITNESS WILLIAMSON: That's correct. COMMISSIONER: And they flow eventually-- WITNESS WILLIAMSON: Pits, pits and pipes. COMMISSIONER: Pits and pipes. ROBERTSON: And there's some stormwater retention at some stage, is there? WITNESS WILLIAMSON: The stormwater retention for this area is provided at the bottom of the hill, if you will. There are two basins. Those can see on C002. ROBERTSON: And we've integrated those with the golf course, so they're hazards. WITNESS WILLIAMSON: When I play, probably yes. ROBERTSON: Yes, so if we look at 02, it's the basin shown between 15 and 16 on that side? WITNESS WILLIAMSON: There is one between 15 and 16. There is also one towards the northeast of the development. ROBERTSON: Yes, that's right at the top on the right-hand side? COMMISSIONER: Yes, a larger one. WRIGHT: I thought there were four in total. ROBERTSON: Yes, there's a couple of on the other side. WITNESS: Correct, there are four in total." (Tcpt, 23 November 2018, pp 6(31-50), 7-11, 12(1-4))
The roadside dish drains and associated constructed landform interact with the proposed lots, and the Council's planner (Exhibit 3) expressed concern about the consequential constraints that might be imposed on the development of the lots. "ROBERTSON: Can I ask you to turn to 5.5 in the plaintiff's report? Page 12. 5.5 is: "To facilitate the design and height of the access road, a continuous batter is required, extending into the residential lots. The batters appear to be one and two, extend to 6 metres from the frontage, this results in a number of lots, appear to have a significant slope up to 50% in some instances." I assume that's a reference to the slope of the batter. WITNESS WILLIAMSON: That's. I, I believe the 50% is a typographic error. Perhaps I could refer you to drawing C029? ROBERTSON: Yes, thank you. WITNESS WILLIAMSON: C029 is a colour-coded plan indicating the gradient of the lot within what we call a - well, what I call the, the development area. So, if you've got a batter on the front of the lot or the up or down side of the road, that's not included in this assessment. It's where you would build a house, this colour-coded plan refers to the gradient of that area. WRIGHT: Can you just excuse me for a moment? I want just want to make sure Mr Robertson understands something. ROBERTSON: Thank you. We've got C029 and the slope-- WITNESS WILLIAMSON: Yep. ROBERTSON: --colours. Just start again. WITNESS WILLIAMSON: Okay. So, the, the slope colours, there's a legend up in the top-right of that plan which indicates which colour responds to which gradient. The gradient refers to the area of the lot which you would build a house. ROBERTSON: Right, so it's not the whole lot? WITNESS WILLIAMSON: It's not the whole lot, no. COMMISSIONER: Is there anywhere on the map which has an indicative building line that shows where the houses would be? WITNESS WILLIAMSON: That is-- ROBERTSON: It's in the subdivision plan, I think, is it? WITNESS WILLIAMSON: There's - actually, the best place to find that is the APZ plan, I believe. ROBERTSON: I'm sorry, Mr Williamson, you're saying that this place is where? WITNESS WILLIAMSON: It's on a figure which is the APZ. WRIGHT: It's a fire. WITNESS WILLIAMSON: I don't think that's my plan. I think that's actually in the bushfire report. WRIGHT: Where's the bushfire report? WITNESS WILLIAMSON: It's actually - it's referenced under 5.11 as one of the planners contentions. There's a-- ROBERTSON: Bushfire assessment is at 2L, which will be exhibit B. I'm told it might be in the architecturals. It's in the architectural plans 002, tab 2C of exhibit A. COMMISSIONER: Yes. ROBERTSON: If we've got a copy, we might just show the witnesses if they don't so they can - now, the building envelope, if you look at the legend on the left-hand side of 02, you'll see that there are various asset detection zones, and then, there's a building envelope, minimum dimensions, indicative positioning. And this seems to incorporate a large amount of information from different experts, but you'll see that indicative building envelope shown, Commissioner, in - if we look at "Stage 1 east", for example, there in the centre of those lots, "Stage 1 east" isn't constrained significantly. And if we look at "Stage 1 north", the building envelopes are in different positions on the lots, but largely in the centre, but some are further away from the golf course. I think the zoning line was shown there in orange. Commissioner, you'll recall that there's an issue raised about the lots being in two zones, split zone lots. You can see easily from this plan "Stage 1 east", where the split zones are, we've shown you that in a different plan, but this is a good plan to use, and there are some split zones from lot 314through to 318, possibly 319 at its corner. And you can also see the stormwater basins. It's actually - this seems to be a good, integrated plan. Mr Williamson, did you want to use this plan? WITNESS WILLIAMSON: I'm happy to use it. Is there anything to which you'd like me to respond? ROBERTSON: It's just the questioning concerning the location of the building areas. WITNESS WILLIAMSON: They generally show what I was speaking to before, which is that the location of the dwellings is located broadly outside the batters that support the roads and that they are on an area of - we have tried to site them on areas of existing natural gradient. Those natural gradients respond to the land form, and they are, in some cases, up to 35%. The majority of them are significantly less than that. COMMISSIONER: Would these - are building envelopes at this stage indicative or would they be conditioned to conform to this plan? ROBERTSON: Normally, Commissioner, we would expect a condition that, for example, prevented building, say, 10 metres from the frontage of 20 metres from the rear. I'm just using those figures indicatively, but for particular lots where they intersected with the RE2 land, we'd expect a condition limiting building to the residential zone part of the lot. And there would also be a condition relating to fire, ensuring that the building was outside the APZ. So, the combination of those conditions for the constrained lots would effectively produce a building envelope. But if the lots are unconstrained, I'm not sure that it would be necessary in those instances. I have seen develop consents for subdivision, where indicative building platforms are inscribed on them and a condition of consent picks it up. But the problem with that is that when you actually get to do the earthworks and the subdivision works, you find that conditions on the ground are such that prescribing a particular area can be more of a problem and there are often better solutions, depending on the design that you propose for the location. COMMISSIONER: But in a general sense, you would be picking up on the planning principles and power of Kiama where it was appropriate? ROBERTSON: Yes. I can't immediately point to a condition in the conditions, but perhaps someone might tell me if there is one. WRIGHT: Mr Heaven has asked for permission to speak. WITNESS HEAVEN: I might add something to that. I generally agree in terms of you would only limit building envelopes where there are real constraints. There are flow-on effects if you have unnecessary building restrictions. There is a draft condition in the consent. I think - I haven't seen the latest consent, but it was 135. So, in terms of engineering-- ROBERTSON: Just let us find that. WITNESS HEAVEN: It's now - sorry, yeah, the old ones. It was the old 135 restriction to road batter. ROBERTSON: So, if you turn to exhibit 13, Commissioner, it's a condition we would accept, of course, Commissioner. It's consistent with our own advice experts. WRIGHT: But in the version I'm looking at, which is the version so far tendered, Mr Heaven, condition 135 is a restriction relating to road batter. WITNESS HEAVEN: That's right. So, what the expectation is is that there will be some slight changes to the extents of the road batters once the detail design work's underway. But I don't myself agree that, you know, particularly once the geotechs did their investigation and there's much more detailed survey, there might be some slight changes in levels. There might be certain outcomes that the geotechs recommend, and combine that with some of the drainage conditions, there might be some changes to the road batter. So, there is an expectation that once those future house designs have been developed, some of those may encroach into those batters. And so, rather than necessarily restricting a 10 by 15 building envelope, what's really important is making sure that there is - you, you alert the owners to various constraints, whether it's, you know, other constraints in the site, but in issues we've looked at, particularly making sure that when mum and dad puts their DA in for a house, that they're very aware of some of those restrictions and the rights to GHD construction and things like that. ROBERTSON: So, if I understand you correctly, you would, by parity of reasoning, want to see conditions that addressed constrained sites, all the constraints including the ABZ slope, it's batter here we're talking about-- WITNESS HEAVEN: Yeah, in, in--- ROBERTSON: --what happened yesterday in relation to the roads themselves, all restrictions, and some of them now apparently are also going to have pipes and drill up and drainage. WITNESS HEAVEN: In, in my experience, the necessary restrictions are required. The unnecessary ones basically are just additional paperwork, because then landowners may need to cut through the council to see variations to restrictions of title. You've then got to go through the history of the subdivision to try to determine what were those restrictions, why did they come about, so there might be some that are environmental, there might be tree protection, there might be, you know, other geotech or ecological constraints that need to be factored in. In the issues that I've looked at, the main issue that I've been involved in relates to the support of the road. ROBERTSON: Can I just draw your attention to condition 14? That's a general 88B instrument that's to be registered and you'll see that subpara (g) requires the 88B instrument over those indicated lots for the maintenance of an inner protection area. WITNESS HEAVEN: That's an APZ. ROBERTSON: And then, there's a restriction on the type of building in those lots in (h). That condition seems to pick up other restrictions that are picked up elsewhere in the consent. And we can't register the subdivision - or sorry we can't get the subdivision certificate issued under 259(e) unless we provide the 88B instrument? WITNESS WILLIAMSON: That's correct. … WITNESS HEAVEN: Look the sites are challenging for any designer. But in terms of the issues listed, you know, I can't really comment on amenity or solar access, but certainly the retaining walls and the draining has been resolved. … WITNESS WILLIAMSON: This site has been a very difficult site to design. It has been a challenging site. We have done everything we can to work with the landform. ROBERTSON: You could've shaped the lots in a different way, I suppose, and made them larger or turned them around perpendicular, there could've been a number of changes. Why did you adopt that particular lot orientation? WITNESS WILLIAMSON: The lot orientation was undertaken by the architect. The - that said, there were a range of options that were explored through the early stages of this project. If I recall correctly, in approximately 2016, it would be mid to early 2016, we explored an opportunity to make all the lots within the development 15% gradient which would've involved a massive amount of earthworks and substantial retaining walls across the site, which I don't believe would've respected the landform at all. We looked at orienting the roads, north south, as opposed to generally east west. That would've helped, it would've looked a bit more like San Francisco with the lots running up the hill. The problem with that was that from a distance what you would see is a couple of parallel scars running up the hill. And from a development perspective, the client decided that wasn't the look they were trying to achieve. ROBERTSON: In other words, from a visual perspective-- WITNESS WILLIAMSON: From a - yeah-- ROBERTSON: --from a distance you would see, as it were, a kind of scar on the hill? WITNESS WILLIAMSON: A couple of scars, that's correct. Now, I'm not speaking to the visual impact. I'm saying that was a decision that was made by the client. With what we have, and I think Andrew and I have agreed, it is a reasonable compromise in the development constraints, the provision of the development, and working with and around the landform. ROBERTSON: Do you have anything to add to that Mr Heaven? WITNESS HEAVEN: Yeah, I - look I agree. One of the challenges for GHD as a designer is they get a project brief with a certain yield and a certain outcome that their client requires. You know, if the client wanted ten lots on the side of that hill, then it would've been a much different - much different design. But there's a certain balancing act between, you know, the feasibility of the project and, and those outcomes. So for this number of lots, and, and, you know, getting a better understanding of the different iterations of the design, yeah, there's - I don't see much else that can be done, you know. As David and I have spoken about, you know, minor opportunities where there might be scope to lower some of those grades, I mean the grades for the roads. And we've got a condition that talks to having a traffic engineer look at certain safety aspects of the road grades, you know, so ideally you would be looking at minimizing those impacts as best as possible. But for what we have in front of us and for this particular yield, I think it's a reasonable outcome. … WITNESS WILLIAMSON: In order to subdivide this land and create residential dwellings, there is a need to undertake earthworks and construct roads. The design that has been produced responds to the land form within the constraints posed by the land form. ROBERTSON: Now relating the drainage impacts specifically which is what this is and geotechnical constraints, just dealing with drainage. We've seen how the various inter allotment drainage works, the roads have culverts and they lead to a settling, a detention basin. As I understand the proposal is to use WSUD techniques is it? WITNESS WILLIAMSON: That's correct, so a combination of water quality and water quantity management at discharge from the subdivided areas. ROBERTSON: All right, I don't think that's been the subject of criticism has it Mr Heaven? Not at the moment, I mean it might've been discussed some years ago? WITNESS HEAVEN: Not that I'm aware of but I, I think, you know, I'm looking at the date of these contentions, particularly the reference to drainage and geotech. If it's drainage in terms of the inter allotment drainage, the, the, the pit and pipe network, then I believe that's been resolved as well as the geotech concerns, I think. ROBERTSON: Yes, thank you. I don't think there was anything else in the planner's report that dealt specifically with engineering issues. I do want to ask you about the arrangements for water lead in infrastructure, but my friend wants to ask some questions about those matters." (Tcpt, 23 November 2018, pp 12(6-50), 13-15, 16(1-4), 18(12-14), 19(26-49), 20(1-29), 21(40-49), 22(1-17))
It was clarified in the exchanges below that some of the proposed dish drains beside the roads would not be within lots, and so would not constrain development within lots. "WRIGHT: With hindsight, with how we far we've moved. Normally we do this topic by topic. I didn't want to interrupt Mr Robertson's flow. I should have, so I'm going to have to back track a little bit, but my questions are narrow. And you've both been careful, particularly Mr Williamson, to ensure that you tell us and the Commissioner that you are only speaking from your, strictly from your expertise, so thank you for that and my questions aren't asking you to venture beyond it. In answer to a question from Mr Robertson in relation to lots 361 to 362 on my note, he asked "If they were the most extreme high point?" You said, "No", I thought Mr Williamson, didn't you? WITNESS WILLIAMSON: I didn't say, "The most extreme high point". Sorry, no the question was in relation to gradient WRIGHT: Yes. WITNESS WILLIAMS: or whether or not the difference WRIGHT: Point of difference. WITNESS WILLIAMSON: of height from the road to the lot was the most extreme. WRIGHT: Which is the most extreme? WITNESS WILLIAMSON: It is adjacent to the escarpment park, and those are 339 and 340. You'll find that on drawing C11. WRIGHT: Now if you all, sorry all, if you keep BV open for the moment and you referred the commissioner to plan C029 to demonstrate what you said was the most likely indication of the batter and camber profile of the road, wasn't it? WITNESS WILLIAMSON: Sorry? WRIGHT: There's some rustling, so it's hard to hear, I'll just wait. You referred the commissioner to her plan C029 from the engineering drawings to demonstrate what you said was a clear indication of the actual profile of the road, including the batters, is that right? WITNESS WILLIAMSON: No, C029 is the gradient of the most likely location for a dwelling site. WRIGHT: Let me just find the plan then, I probably made the wrong note. Or you can tell me which plan you had to, which is thought was a section showing the batter profile in the road profile. No, I'm sorry, I am in the wrong plan. Can you recall which plan that was Mr Williamson, showing the road? WITNESS WILLIAMSON: Was it the figure in the planning report that your referring to? WRIGHT: No, you looked at the fitment and planning report, then took the Commissioner to a plan to show the WITNESS WILLIAMSON: Sorry, it's the engineering section of C05 which is the typical, typical section for road type 1. WRIGHT: Just give me a moment, I've got so many tabs on this now, almost intermingling. Yes, thank you. Just clarifying. As a consequence of the further discussions between the geotechnical engineers as to what will be required by way of batter design can show that they are stable long term, this profile won't necessarily link up with the..(not transcribable)..like after that design has been done, will it? We don't know what the road, the batter profile is going to be until we see the design produced to ensure that they're not as identified as temporary batters were they? WITNESS WILLIAMSON: The discussion with the geotechnical engineers confirmed that the batters shown on the plans, if further geotechnical investigation was undertaken and appropriate geotechnical design was undertaken and then built in an appropriate way, the batters as shown, are appropriate. WRIGHT: All right, but we don't know until that investigation design is done that they will be able to remain this way, do we? WITNESS WILLIAMSON: Your position, or your, your statement is correct, but at the same time the geotechnical engineers didn't raise that as an issue. WRIGHT: It's clear enough though from the contribution they made to you in the suggested form condition that it is all subject to further design? WITNESS WILLIAMSON: Absolutely, and we've agreed generally the terms of that condition. WRIGHT: The dish drains that the Commissioner drew your attention to will all have to be present won't they, on residential lots? WITNESS WILLIAMSON: No, the dish drains are within WRIGHT: All of them? WITNESS WILLIAMSON: the lot, within the roads. So if the section that you're referring to is road type 1, then on the left and the right of that section, there is a notation saying, "Property boundary". WRIGHT: So you're saying that even with this further geotechnical design, with the batters extending into the residential lots, that you'll still be able to ensure that dish drains, the road, are outside residential property boundaries? WITNESS WILLIAMSON: What's shown on our plans is that the batters take the road down to the residential lot, but that the dish drains shown on the section are within the road boundary. WRIGHT: But you don't know do you, until you see the geotechnical design that that's achievable in all cases? WITNESS WILLIAMSON: I'm, I'm not quite sure what you're trying to ask me. WRIGHT: What I'm asking you, is because we still don't know what the final geotechnical design will be to ensure batter stability whether we can be certain sitting here, that the dish drains for the road will be located entirely within the road, or may intrude into residential lots? WITNESS WILLIAMSON: The, the batters will start at the edge of the road boundary. WRIGHT: All right. WITNESS WILLIAMSON: The dish drains are shown within the road boundary…" (Tcpt, 23 November 2018, pp 22(19-50), 23, 24(1-38))
As well as changes to the landforms associated with lot layout, drainage and road design it was indicated that as individual lots were developed, it might become necessary to adjust the land surface within particular lots. "WRIGHT: Excuse me a moment. I think I heard you say Mr Williamson that you expect that for the residential development stage of this, where people actually come to build their house, that there is likely further land form modification lot by lot to achieve that, or is that not intended? WITNESS WILLIAMSON: I expect that the needs or wants of the future land owner, will dictate the form and function of the houses that they would like to build. WRIGHT: And that may include further land form modification on lots? WITNESS WILLIAMSON: It may. WRIGHT: But until we see that done, it's not possible is it, to indicate the land form relationship lot by lot to other lots in the subdivision or to the road for example? WITNESS WILLIAMSON: The construction or the approval of each dwelling - and this is a planning matter so I'll defer to the planners - but my understanding is the construction of each dwelling may or may not be complying development, it may or may not require its own application for consideration by council. And that would be appropriately addressed at that point. ROBERTSON: Of course if there is an 88B covenant requiring building outside particular areas, the extent of land form modification will be constrained by that covenant, won't it? WITNESS WILLIAMSON: The covenant as we've discussed would most likely - for example, with the batters that we speak of - would most likely require the batters to be protected in form. If the landowner wanted to modify that batter, they'd be required to ensure that the support with the road is maintained through other measures that they would then be required to construct…" (Tcpt, 23 November 2018, p 25(6-38)).
In Exhibit 3, discussion of Contention 5.3, Ms Lee concluded that: "in my opinion, the design of the proposed subdivision in regard to the lot layout and road design has failed to appropriately account for the topography and natural landforms of the site to demonstrate there will not be an any adverse impacts".
Mr Williamson acknowledged that there will be challenging design issues for the subdivision but that the aim was to work with the landform "rather than fighting it" (Tcpt, 23 November 2018, p 7(7-10)). In his opinion "the proposed design was a reasonable compromise in trying to achieve a subdivision on the slope that we're working with" (Tcpt, 23 November 2018, p 7(16-17)). Mr Heaven agreed that the design was a reasonable compromise.
Mr Heaven also agreed with Mr Williamson in discussion of the other criticisms by Ms Lee of subdivision design and concluded - "Yeah, I - look I agree. One of the challenges for GHD as a designer is they get a project brief with a certain yield and a certain outcome that their client requires. You know, if the client wanted ten lots on the side of that hill, then it would've been a much different - much different design. But there's a certain balancing act between, you know, the feasibility of the project and, and those outcomes. So for this number of lots, and, and, you know, getting a better understanding of the different iterations of the design, yeah, there's - I don't see much else that can be done, you know. As David and I have spoken about, you know, minor opportunities where there might be scope to lower some of those grades, I mean the grades for the roads. And we've got a condition that talks to having a traffic engineer look at certain safety aspects of the road grades, you know, so ideally you would be looking at minimizing those impacts as best as possible. But for what we have in front of us and for this particular yield, I think it's a reasonable outcome." (Tcpt, 23 November 2018, p 20(15-29)
The civil engineers' evidence shows that many of the issues between the parties had been resolved (from an engineering perspective) by the proposed conditions, but also identified a number of matters where additional conditions may need to be developed.

Ecology

The ecologists, Mr McKinnon, for the Applicant, and Mr Morrisey, for the Respondent, had conferred and produced a primary Joint Experts Report (Exhibit 8) and two supplementary reports (Exhibits AA and 17).
The experts were questioned in relation to two issues, the riparian corridor of Mullet Creek and environmental assessment of the possible route of the Sydney Water infrastructure.
The activities which would be required for streambank stabilisation in Mullet Creek, would, at the time the application was first submitted, have required approval from the NSW Office of Water. The approval function now resides with the Natural Resources Access Regulator (NRAR) (Natural Resources Access Regulator Act 2017). Controlled activities carried out in, on, or under waterfront land are governed by s 91 of the Water Management Act 2000, which is administered by the NRAR.
Waterfront land includes the bed and bank of any river, lake or estuary or all land within 40 m of the highest bank of the river, lake or estuary. The NRAR is required to assess the impact of any controlled activity and may only issue a controlled activity approval if it considers that no more than minimal harm will be done to waterfront land if the controlled activity were carried out
The Applicant had been provided with a number of reports dealing with Mullet Creek and its riparian zone - Exhibit B, Tab 2 Appendix T - Vegetation Management Plan by Ecoplanning, Exhibit B, Tab 2, Appendix V - Geomorphic Investigation and Top of Bank by Streamology, Exhibit B, Tab 2, Appendix W, Aquatic and Riparian Condition Assessment by CTEnvironmental.
It was necessary in Appendix V to determine the Top of Bank as the information is required to define the Vegetated Riparian Zone.
During the development of the VMP, Mr McKinnon exchanged emails (Exhibit T) with Mr Maurice of the Office of Water. They had also been a meeting on site between Mr Maurice, Mr McKinnon and Mr Morrisey (evidence of Mr Morrisey, (Tcpt, 23 November 2018, p 57(31-34)). The purpose of the meeting was to reach a common position on a number of issues, including on the location of the top of the bank and the vegetation zones within the VRZ.
The NRAR issued Guidelines for Controlled Activities on Waterfront Land in 2018; these were tendered as Exhibit EE.
The ecologists agreed (Mr Morrisey (Tcpt, 23 November 2018, p 57(28)), and Mr McKinnon, (Tcpt, 23 November 2018, p 57(38)), that the Guidelines were not strictly followed, "but there was an agreement with the Office of Water back in 2016 that the 10 metre VRZ minimum on either side of the creek was sufficient, and that's how we've proceeded and found agreement" (Mr McKinnon (Tcpt, 23 November 2018, p 57(40-43)).
I was advised by both parties that neither the Office of Water, nor subsequently the NRAR, have provided written general terms of approval (GTAs) to the respondent. Since the end of the hearing I have not received any advice that the position has changed.
The possible ecological impacts from the provision of services by Sydney Water were discussed at considerable length, in relation to the map of the preferred route options forming part of Exhibit 17.
The construction of the water and wastewater services off-site is not part of the application before the Court. However, the potential environmental impacts associated with provision of services were raised in the Respondent's contentions and submissions. The provision of services is clearly essential for the development of the proposal beyond the mere creation of roads and lots.
Can a matter that is not part of an application be taken into account when assessing the impacts of what is proposed? It is well-established that the Court is able to consider the ultimate use of land when deciding whether to approve an application for subdivision (Serafina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 2009; Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 132). Looking into the future in the assessment of subdivision applications is written into the requirement within many LEPs (including WLEP 2009) that the consent authority be satisfied with the arrangements for provision of services. There is ample precedent for consideration of off-site impacts being an essential part of the assessment of impacts of proposals. Although there is no power to approve off-site works, I need to be satisfied that processes for assessment of off-site impacts can occur; in order to be satisfied that the risks are being assessed, it is important to have knowledge of what is at risk. Hence, the evidence of the ecologists is a necessary part of the overall assessment of the proposal.
Both Mr McKinnon and Mr Morrisey have considerable experience in the study of the vegetation on the Illawarra coastal plain, and Mr McKinnon had been engaged by Sydney Water to conduct ecological investigations along possible routes for water and sewerage infrastructure in the West Dapto Release Area (see Exhibit P).
The map in Exhibit 17 shows a new water main from the corner of McPaul Avenue and Princes Highway, Dapto to the Huntley site, and a 5.5 km main sewer connected to the adapter carrier main sewer (Stage I) with an extra main sewer extension to be constructed, on present forward planning, in 2026 (Stage II).
From an ecological perspective there is a particular concern (Exhibit 8) over the presence of patches of mapped threatened ecological communities along the western and central sections of Avondale Road, and larger patches in or close to the road reserve near Penrose Drive to Princes Highway.
The ecosystem concerned is the Illawarra Lowland Grassy Woodland in the Sydney Basin bioregion, an Endangered Ecological Community originally listed on the schedules of the TSCA and subsequently, with the repeal of the TSCA, transferred to the schedule of the Biodiversity Conservation Act 2016 (BCA).
The community is also listed as Critically Endangered Ecological Community under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The listed community under the EPBC Act occurs over a wider geographic area (extending southwards to Jervis Bay) than that listed under the BCA and is subject to size and condition criteria, such that not all stands covered by the BCA listing are included in the EPBC Act listing.
However, the Land and Environment Court has no jurisdiction under the EPBC Act. Any obligations under the EPBC Act are matters between the proponent of the development, which in the case of the utility services would be Sydney Water (even though the construction of the works would be at the initial expense of, and be carried by, or on behalf of, the Applicant to the specifications of Sydney Water) and the Commonwealth, but in the event that an approval arises from these current proceedings, there may remain matters requiring approval by the Commonwealth. The approval process in New South Wales falls under Part 5 of the EPA Act, so the assessment process would be the responsibility of Sydney Water.
The map in Exhibit 17 shows that the wastewater route has a prominent deviation, referred to in cross-examination as the 'U', where it diverges south from the previously relatively straight run of the route, and then after a section running south of Avondale Road returns north to reform the previous alignment. My understanding from Mr Robertson was that this deviation was to service another development area, which highlights the fact that the water and waste services will not be solely for the Applicant but would service other development within the release area.
Mr Morrisey was asked about individual threatened species occurring on the route, and he raised concerns about three - Pterostylis gibbosa, a ground orchid, Chorizema parviflorum, a subshrub in the pea family and Pimelea curviflora var. curviflora, a small shrub, which had not been recorded from the Illawarra prior to 2011 and so had not been subjected to targeted search in the original survey, whereas the other two species had been (Mr McKinnon Tcpt, 23 November 2018, p 79(24-37)).
Mr Morrisey was subjected to, at times, vigorous cross-examination by Mr Robertson in relation both to his opinion on the status of the threatened ecological community (with Mr Robinson seeking to have him make a distinction between the conservation status of the community and its formal legal status as reflected in the schedules of the BCA and EPBC Act), and the individual species. In relation to these species the following passage is relevant: "ROBERTSON: Yes and was a targeted survey done at a time - well, it was targeted before the end of May and after August, so if pimelea had been flowering in Spring, it should have been picked up? WITNESS MORRISEY: But I'd - that's not necessarily the case. ROBERTSON: Well, if a botanist is able to recognise a species they would have recorded it? WITNESS MORRISEY: Well, no botanist is going to recognise every single species in a targeted survey, or even, even in doing a, doing a 20 by 20 metre standard quadrat. So I disagree with you. ROBERTSON: I see, so no - " (Tcpt, 23 November 2018, p 80(27-40))
I consider that it is unlikely that any botanist would be able to record every single species in a 20 x 20 m quadrat. The issue of recorder 'error' has been a focus of attention in the ecological literature for many years and it would be generally accepted that except in extremely depauperate communities it is probably inevitable. The error might arise for several reasons - lack of competence or inexperience of the recorder (and in this instance I acknowledge that Mr McKinnon and Mr Morrisey are both competent and experienced field botanists), and the fact that, in some circumstances, even not particularly closely related species may be superficially similar vegetatively and would require very careful examination of individual plants to detect differences in the absence of flowers or fruit. Particular species may be only detectable in particular seasons, aboveground presence may vary between years. I would expect that a competent and experienced botanist would be able to record every species from the over storey (trees) in a 20 x 20 m quadrat, but these, even if they dominate the biomass in the community, will only be a fraction of the total number of species present.
In recording shrubs and groundcover species it is unlikely that a botanist conducting a survey would physically handle and identify every single individual plant present in a 20 x 20 m quadrat; for recording under the canopy small quadrats within the 20 x 20 m quadrat would be required. Even in this circumstance, even if it were possible to record every plant present aboveground at the time of sampling, the problem of some species possibly being present only in the soil in the form of seeds or perennating vegetative organs would remain. The option of repeated sampling over all seasons, over several years, while appropriate in some research contexts would be completely unrealistic in studies conducted as part of environmental assessment.
The approach of targeted searches at appropriate times of the year is possibly the best available option, but the data can never be 'perfect'. Where other sources of information suggest that there might be species of particular importance in the study area, an appropriately conducted targeted survey will be an approach to recording those particular species, but, as demonstrated by Pimelea curviflora var curviflora, there is always scope for the unexpected to turn up.
The original surveys (documented in Exhibit J) were conducted some years ago, and the distribution of species, and environmental conditions in some localities may have altered (as a result, for example, by disturbance and/or the spread of introduced species).
The questioning of Mr Morrisey, although persistent, did not advance the case and perhaps approached what Mr Wright referred to as being of "at best tangential relevance to the questions you have to determine" (Tcpt, 23 November 2018, p 83(21-22)).
A further issue raised by Mr Morrisey was the location of the water supply reservoir. In order to maintain pressure a suitable reservoir (specified as being of 0.5 ML capacity) close to the Huntley site would be required. The form of the reservoir is likely to be some sort of water tower, but its location, at this stage, is completely unknown. Mr Robertson suggested that it may not need to be on the Applicant's land, but could be somewhere nearby, and the choice would be Sydney Water's. As well as impacts on the vegetation of the locality of the reservoir, there might be visual impacts to consider. The position of the reservoir would be determined by Sydney Water's planning and engineering process, in the impacts of the supply services and of the reservoir would fall to Sydney Water to assess and determine, and not to the applicant.
It is not the role of the Court to specify the design or process of studies which Sydney Water might require to be carried out as part of assessment of a detailed proposal for the supply of services. Any such studies are likely to build on existing information, which would need to be augmented when the design is closer to finalisation.
As regard to the construction of the pipe lines the ecology experts were not able to provide details, but agreed that there were two possible techniques, trenching or underboring, and that in some localities underboring might be preferable as it would reduce root damage and other impacts.
The ecologist's evidence in relation to the stream stabilisation works and the revegetation of the Mullet Creek riparian zone is that with the appropriate conditions the proposal is acceptable. In relation to the off-site impacts, the ecologists are in agreement that new surveys and assessment would be required once the route is finalised, and that a process exist for that assessment.

Contamination

Clause 7 of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) requires: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is: (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land: (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).
The contamination status of the site is a mandatory consideration for a consent authority. Unless the consent authority has considered whether a site is contaminated (cl 7(a), and (c)), and that, if it is contaminated, it is, or can be, made suitable for development (cl 7(1)(b) and (c)), the consent authority cannot give consent for the site to be developed.
Before determining a development application, the consent authority must consider a report containing the findings of a preliminary report commissioned by the proponent and carried out in accordance with the contaminated land policy guidelines (cl 7(2)).
The land to the south of Avondale Road, with a long history of mining and associated activities, is known to have been contaminated and remediation works in this area form part of the approval for its development.
A helpful outline of the investigations of contamination is contained in the affidavit of 31 January 2019 of Ms Bean, the Applicant's solicitor, and substantial documentation is provided in the four volumes of "Exhibit PB1" which accompanied the affidavit.
As part of the documentation of the development proposed north of Avondale Road, which is the subject of these proceedings, a contamination report was prepared in 2017, because although the major use of the site had been for grazing, there had been establishment of a number of pads for the receipt of Virgin Excavated Natural Material (VENM) and Excavated Natural Material (ENM). The report by JBS & G Australia Pty Ltd is included as Appendix Q to Exhibit A.
Contention B2.6 of the Respondent's ASOFC (Exhibit 1) is that the Respondent considered there was insufficient information provided with the amended development application (Exhibit A at Appendix P, prepared by JBS & G Australia Pty Ltd (JBS & G), and Appendices U1 and U2 prepared by the site auditor, Ms Kylie Lloyd, from ZOIC).
The Respondent considered that the information thus far provided was still insufficient to satisfy the requirements of SEPP 55 and Chapter E20 of the WDCP and indicated that in order to satisfy the requirements a Stage 2 Detailed Site Investigation and an updated Site Auditor's interim advice were required, and in addition an assessment of gas risk was required.
The planning experts (Mr Robilliard and Ms Lee) considered Contention B2.6 in their joint conferences (Exhibits 3 and 4) and in Exhibit 4 considered additional information prepared as a response to B2.6 by JBS & G.
At the hearing, the Applicant tendered (on 20 November 2018) an updated version of the preliminary site investigation dated 13 November 2018 (Exhibit L). This updated report identified: 1. that the land the subject of the DA now excluded the area of the Rotary Club (this is at the south-west edge of the site); and 2. provided data from ground gas monitoring.
The contamination issue as understood at the commencement of the proceedings was discussed by Mr Robertson (Tcpt, 20 November 2018, pp 34-35); he focused on ground gas contamination 'because this is really the only contamination issue that you are going to have to consider in our respectful consideration'. Assessed against the 2012 EPA Standard for Ground Gas Monitoring Guidelines for the Assessment and Management of Sites impacted by Hazardous Ground Gases, the data indicated very low risk conditions such that no further action was required.
On 21 November 2018, in an email exchange between the parties' solicitors, the Respondent outlined that contention B2.6 might be resolved if the Applicant provided an updated site auditor's interim advice.
On 11 December 2018, the Applicant and Respondent were provided by JBS & G with a detailed site investigation report. 11 December 2018 was the day before the resumption for Day 5 of the hearing. The report was a substantial document. It was tendered and admitted as Exhibit JJ subject to objection by Mr Wright, who expressed concern that the relevant staff were still in the process of reviewing the report. Advice from the site auditor was tendered as Exhibit KK, subject to the same objection.
Neither party had called contamination experts, because of their previous understanding that the issues had been resolved.
On 12 December 2018, Ms Kilpatrick, solicitor for the Respondent, raised with the Applicant that the detailed site investigation report (Exhibit JJ) excluded an area of land which was part of the golf course approved by development consent 2019/1037B.
The Respondent's concern was that the DA the subject of the present proceedings sought to modify a development consent 2009/1037B, such that the Respondent (and in these proceedings, myself standing in the shoes of the Council) was required to be satisfied that the obligations under SEPP 55 had been met but the new report did not include re-examination of fill pads 1 and 2 or the stockpiles.
The situation had arisen because the Applicant had instructed JBS & G to exclude that part of the site from their investigation because it was subject to a separate existing development consent.
On 13 December 2018, I directed the Applicant provide the Respondent with any additional material relating to contamination which would satisfy the Council's concerns as expressed in contention B2.6.
I accept that the failure to require re-examination of the fill pads and stock piles was an inadvertent error, but its timing was extremely unfortunate. The consequence was that SEPP 55 cl 7(2) was not satisfied so that a jurisdictional hurdle had not been surmounted. However, it was shortly before Christmas and the availability of both council staff and consultants was likely to be limited.
The fill on the site had been emplaced before the Applicant owned the property. However, Mr Robertson advised that there had been communication with the previous land holder and that it was hoped to obtain the certificates for the loads of fill which had been delivered to the site.
On 20 December 2018, the Applicant, through its solicitor, provided additional information: 1. a detailed site investigation report by JPS & G on 20 December 2018; 2. a Remedial Action Plan (RAP), prepared by JPS & G dated 20 December 2018; 3. interim site auditor's advice from Ms Kylie Lloyd of ZOIC.
The matter was then adjourned until the New Year, to allow the parties and their experts to consider the new information.
Hearing resumed on 6 February 2019, at which time the affidavit from Ms Bean was received.
The JBS & G report of 20 December 2018 included both a preliminary and detailed site investigation (cl 7(2) and (3) of SEPP 55). The report documented that some anthropogenic materials found associated with fill pads were potentially not compatible with the certificates for VENM/ENM delivered to the site. JBS & G considered that lack of knowledge of the detailed composition of the fill pads and stockpiles was a data gap
The further monitoring of ground gas did not change the earlier assessment of very low risk conditions. However, the Remedial Action Plan (RAP) was prepared to facilitate the characterisation of the fill pads and stockpiles on site, control identification and assessment of materials potentially not consistent with VENM/ENM and ensure remediation/management of any contaminated materials if they were to be present in the fill pads/stockpiles. The RAP incorporates an Unexpected Finds Protocol (UFP), for the earthworks proposed to be undertaken in the civil construction works proposed for the site.
As a result of the requirements specified in the RAP, which are accepted by the Applicant, Category 1 restoration works are required (cl 9 of SEPP 55). 9 Category 1 remediation work: work needing consent For the purposes of this Policy, a category 1 remediation work is a remediation work (not being a work to which clause 14 (b) applies) that is: (a) designated development, or (b) carried out or to be carried out on land declared to be a critical habitat, or (c) likely to have a significant effect on a critical habitat or a threatened species, population or ecological community, or (d) development for which another State environmental planning policy or a regional environmental plan requires development consent, or (e) carried out or to be carried out in an area or zone to which any classifications to the following effect apply under an environmental planning instrument: (i) coastal protection, (ii) conservation or heritage conservation, (iii) habitat area, habitat protection area, habitat or wildlife corridor, (iv) environment protection, (v) escarpment, escarpment protection or escarpment preservation, (vi) floodway, (vii) littoral rainforest, (viii) nature reserve, (ix) scenic area or scenic protection, (x) wetland, or (f) carried out or to be carried out on any land in a manner that does not comply with a policy made under the contaminated land planning guidelines by the council for any local government area in which the land is situated (or if the land is within the unincorporated area, the Western Lands Commissioner).
SEPP 55, cl 8(2) specifies that: (2) A person must not carry out a category 1 remediation work except with the consent of the consent authority.
By Short Minutes of Order filed in Court on 6 February 2019, the Applicant sought to amend the Class 1 application in the terms of proposed Order 2 (but with corrections to dates as advised in Court). "Consent is granted development application no. DA 2016/1019 as amended 22 August 2018 relating to the subdivision of 99 residential lots, 1 community title lot and one residue lot of a staged development to be delivered in three stages and associated works including category 1 remediation works, civil works, road upgrade, parks, open space, rainwater basins, earthworks and utilities at the land parcel comprising of Lot 1 Avondale Road and 520, 528, 539 and 571 Avondale Road, Avondale and bank stabilisation works on Lot 18 DP 3083."
The changes to the application address both the Respondent's Contention 13, as they identify that part of the required works will occur on Lot 18 DP 3083 (application for which was provided by the owner's consent in Exhibit LL), and Contention B2.6 regarding contamination.
I granted consent to amend the application. I also granted the second order sought that: "Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the Respondent 'thrown away' as a result of amending the application in the amount of $4200 within 28 days."

General Terms of Approval

The application is for integrated development, so that General Terms of Approval (GTAs) are required from at least two, and possibly three, government authorities: the Rural Fire Service (RFS), the NRAR and Fisheries.
The RFS has considered the application under Division 4.8 of the EP&A Act - and on 7 November 2018 issued a Bush Fire Safety Authority under s 100B of the Rural Fires Act 1997 (Exhibit 2, Tab 29 - also tendered separately as Exhibit 16). The Bushfire Safety Authority specified requirements for Asset Protection Zones (APZ), required establishment of instruments under s 88 of the Conveyancing Act 1919 for the APZs, specified the requirements for water and utility services, provided specifications for access arrangements and noted that part of the AZs for Stage I North. may require future dwellings to be constructed to a Bushfire Attack Level (BAL) greater than BAL 29. The requirements derive from NSW RFS Planning for Bushfire Protection 2006.
I am satisfied that the proposed conditions of consent incorporate the RFS GTAs.
The need for GTAs to be provided by NRAR and NSW Fisheries arises in relation to the proposed bank stabilisation works in Mullet Creek.
Exhibit T contains email correspondence between Mr McKinnon and Mr Maurice of the Office of Water. Mr Maurice's email of 1 July 2016 including the following paragraphs "Fisheries It is confirmed that approval from DPI Fisheries will not be required given that a Controlled Activity Approval under the Water Management Act 2000 is being obtained. DPI Water will require the design of all proposed pedestrian and vehicular crossings to support the provision of fish passage in line with DPI Fisheries requirements. Riparian Corridors There are several tributaries of Mullet Creek within the greater Avondale site. The following documentation for the site is to be prepared to show compliance with the requirements of the CAA Guidelines for riparian corridors on waterfront land: • All tributaries should be mapped with clarification of top of bank. • All tributaries should be mapped with clarification of strahler stream order and corresponding VRZ requirements as prescribed by the CAA Guidelines. • The total VRZ area as required by the CAA Guidelines is to be calculated. • A VRZ offset plan is required showing all proposed offset areas adjoining the riparian corridor. The offsetting strategy should seek to achieve 100% offsetting for VRZ area as required by the CAA Guidelines. • Secondary offset areas should also be identified and quantified for the surrounding area on and off set. • A minimum 10m VRZ is to be provided for all tributaries with allowance for minor encroachments to be considered on merit. • An updated VMP will be required to outline implementation and management for all riparian and offset areas."
The CAA for Riparian Guidelines referred to in the email were those current in 2016, and not the current 2018 version. In my consideration of the issue I have regard to the 2018 Guidelines, although in essence they are similar to the earlier version.
No documentation recording the exchanges between the Office of Water and Fisheries was in evidence, but Mr Maurice's statement was not challenged during the hearing. Any such agreement would also apply to any approval granted by the Office of Water's successor, the NRAR.
However, a letter from Mr Allan Lugg, a Senior Fisheries Manager with DPI Fisheries to Ms Lee of Wollongong City Council was tendered as Exhibit 19. This letter was dated 8 May 2017, 10 months after Mr Maurice's email but makes no mention of either any prior discussions or agreements with the Office of Water.
This letter notes the obligations of DPI Fisheries to ensure that developments comply with the requirements of the Fisheries Management Act 1994 (in particular Parts 7 and 7A) and the NSW DPI Policy and Guidelines for Fish Habitat Conservation and Management (2013). Fisheries noted the importance of Mullet Creek and its tributaries and of Lake Illawarra into which the creek flows. Mr Lugg requested that if the development be approved a condition of consent requiring that waterway crossings must comply with the fish passage requirements for waterways crossings (S Fairfull and G Witheridge, "Why do fish need to cross the road? Fish Passage Requirements for Waterway Crossings" (2003) NSW Fisheries) and preliminary designs must be referred to DPI Fisheries for consideration prior to the lodgement of Controlled Activity Approvals. I note that Mr Maurice, in his email (Exhibit T), indicated that Fisheries required that the design of an crossings of water courses was in accord with that recommended by Fisheries for fish passage.
Fisheries also raised concerns over water quality issues both in relation to the construction phase of the development and subsequently. Fisheries advised the Wollongong City Council not to consent to the proposal until the applicant can demonstrate that the development meets objectives of protection of the sensitive downstream waterway (Lake Illawarra).
Mr Lugg does not mention Mr Maurice's advice that if approval was granted by (the then) Office of Water no separate approval was necessary from Fisheries. It would appear that formal GTAs have not been provided by either NRAR or Fisheries.
If Mr Maurice's statement remains valid under the NRAR then only one set of approvals is required, and separate approval from Fisheries is not required. If this is not the case, two sets of approval would be required - neither of which have been obtained.
The ecologists discussed Mr Maurice's issues regarding the Mullet Creek VRZ. Although Mr Morrisey was not certain that the Guidelines for Controlled Activities on Waterfront Land were fully met but he did acknowledge the prior agreement with Mr Maurice.
The ecologists did not provide evidence that specifically addresses fisheries and downstream water quality (in particular sediment) issues, and they were not asked questions on these matters when they gave concurrent evidence.

Uncertainty

Uncertainty lies at the heart of this case, with the Applicant contending that while there are still matters of detail to be finalised, I could be satisfied that there were established processes which would allow for proper consideration and assessment of the issues, and the Respondent arguing that the number of matters yet to be resolved means that I could not be satisfied that the impacts of the proposal would be acceptable.
Uncertainty can arise at various stages in the planning process and for a variety of reasons. The discussion below is not exhaustive.
The planning process in NSW seeks to provide a degree of certainty at the start of the process through the establishment of zones. The importance of zoning was discussed by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP) at [115] - [119]. In [117], it was stated that: "in the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of the dispute as to the appropriate development of any site" and, in [118] - [119]: "118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project."
This makes it clear that just because a particular type development is permissible with consent on a particular site there is no right (certainty) to carry out any development of that type - the environmental impacts have to be acceptable, so in all cases the acceptability of the environmental impacts is paramount.
Uncertainty may arise because of data deficiencies. In the assessment of impacts on the biodiversity only a limited range of taxa are normally considered. The true impacts on biodiversity are either not considered at all or an assumption, which is very rarely tested, is made that those taxa which have been studied provide a surrogate for the responses of the much wider range of species which have been unrecorded. Given that many of the unrecorded species are cryptic and/or undescribed it would be unrealistic to require that impact assessment studies cover a larger range of taxa. Rather a consent authority would have to make an assessment of the skills, experience and credibility of those expert ecological consultants who have carried out studies and have made assessments of impacts on biodiversity. In some circumstances, it may be appropriate for a consent to contain conditions requiring further studies in the life of a project, the results of which would feed into adaptive management: this was the outcome in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and with Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 (NHVSS) when, in the absence of any data about stygofauna in a limestone deposit which would be quarried, a sampling and management regime was required in the consent conditions.
The ability to act on a consent may be uncertain because of the need to obtain approvals under other legislation, for example, if separate approval from the Commonwealth under the EPBC Act was required, or permission from a third party needed to be sought - in this case, although I am not suggesting that the situation would arise, if an access agreement to Lot 18 DP 3083 cannot be negotiated between the Applicant and the landholder then the proposal could not proceed even if approval were given in these proceedings.
There may be uncertainty as to the future form of development on a site. In this proposal the application is for a subdivision and associated works but not for construction of any residences. The applicant is not intending that the individual lots will be sold as vacant land but rather as land and house packages. I note the house component on each individual lot is intended to be one of a suite of designs presented in Exhibit A, Tab 8. The footprint of different house designs varies, and the lots are of different sizes, but there is currently no allocation of particular designs to particular lots. Even though the lots are of different sizes there are other constraints which would limit the size and location of the achievable building envelope on any particular lot. These constraints include the imposition on some lots of Asset Protection Zones. Some plots are split zone, containing areas zoned R2 (Low Density Residential) and RE2 (Private Recreation) and any dwelling constructed on those split zoned lots would be restricted to being within the R2 portion of the lot.
There would need to be development applications for each individual dwelling and the consent authority would have control of what is built on a particular lot and ensure that the constraints were observed. Mr Robertson argued that sufficient detail had been provided to demonstrate that long-term intentions of the Applicant could be achieved and that more detail would be provided during the approval process for individual dwellings.
However, if the current application is approved it would not include reference to any future dwellings. I accept that the applicant is committed to its long-term plans, but any approvals would run with the land. If circumstances change and for whatever reason the ownership of the site changed a new owner, with the benefit of subdivision approval, would not be bound to continue with the previous owner's intentions.
As Lord Keith of Kinkel observed in Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 S. C. (H. L.) 58 (Grampian): "There is nothing to compel any successful applicant for planning permission to carry out his development, so uncertainty may be said to be a natural feature of the planning process".
Recognising the planning processes necessarily involve uncertainty, it is desirable that as far as possible uncertainty is minimised.
Conditions of consent imposed upon the granting of approval aim to ensure acceptable outcomes and minimise uncertainty of eventual outcomes.
However, there are limits to what can be achieved by conditions. Firstly, a condition of consent cannot, in effect, be a refusal in disguise - reason for close scrutiny of any deferred commencement condition. A condition of consent cannot defer determination to the future, when the ultimate decision-maker would have a very broad scope such that at the time of the issuing of the consent there would be certainty as to the eventual outcome (Mison v Randwick Municipal Council (1991) 23 NSWLR 734) (Mison). Mison identified two (potentially overlapping) errors may arise - that the condition effectively changes the development for which approval was sought, and, secondly that the condition is in terms which lack finality or certainty so that there is no valid consent.
Consent for development must not be uncertain (Mison) but Mason P in Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 said at [117] that: "Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the final function of supervising a later stage of the development is prohibited." I consider that, in this matter, the assessment of off-sites impacts would not result in a completely different development being approved, so that the second error in Mison does not arise.
Samuel JA in Scott v Wollongong City Council (1992) 75 LGRA 112 said at [118]: "…it cannot be supposed that the development application can contain ultimate detail or that a consent can finally resolve all aspects of proposal with absolute precision."
Inevitably how much detail is required in a development application, and how much can be left to later, will involve questions of degree, and the answers are likely to vary according to the nature of the development proposed, and the issues raised by the absence of specific information in the development application. The questions will have to be addressed on a case-by-case basis.
Mr Wright (Respondent's submissions at paragraph 92) argued that: "the relevant point of difference between the level of detail required for developed assessment and for a construction certificate is self-evidently that the latter requires a level of detail which is necessary to facilitate actual construction". This begs the question of how much, and what sort of, information is required the development application stage.
Conditions should be clear and unambiguous as they importantly provide direction to certifiers. If a condition is open to a number of interpretations, and its precise intent is unclear, there is uncertainty in that unintentionally a certifier might sign off on something different from that which the consent authority thought they had approved. In a large and complex proposal such as the current matter, precision in conditions is important, given the necessary voluminous nature of the conditions required.
In the present case a major issue is that the water and wastewater services for the development not part of the proposal will be separately assessed at some future date, so there is uncertainty about the location of services and their impact. A major disagreement between the parties is whether the Applicant's proposal can be granted consent in the absence of final assessment of the supply of services; whether consent can be granted subject to conditions requiring prior completion of the assessment of the water and wastewater services; or whether, given that assessment will be the responsibility of Sydney Water and there is an established process by which the assessment will come about, the consent can be given to the Applicant's proposal in the certainty that the off-site works will undergo a full and credible assessment.
In the circumstances where the development requires, in order to reach completion, works on land not part of the development site and over which the Applicant has no control it is possible that a form of deferred commencement condition, known in the UK as a Grampian condition, could be appropriate.

Grampian Conditions

If a development requires, for its commencement or completion, off-site works or activities on land which is not under ownership or control of the proponent, can conditions of consent include measures applicable to the off-site works? Imposition of conditions worded in positive terms, requiring the proponents to carry out works on land outside their ownership or control, or which could only be complied without the consent or authorisation of a third party would be unenforceable and ultra vires in many circumstances (although s 4.17(1)(f) discussed at [204] below may provide an exception in some limited circumstances).
However, the same end result might be achieved by a negative (or suspensive) condition, prohibiting development from commencing (or only being carried out to some stated hold point) until a specified action is taken. Such a condition is referred to as a Grampian condition - after Grampian. This Scottish case was about a proposed industrial estate development where the impediment to granting consent was that if the development were approved it would result in major traffic issues which could be resolved by the closure of a trunk road. The matter had been subject to a public enquiry after which the reporter refused the appeal on grounds that the proponents had no power to achieve the road closure themselves. Ultimately the matter came before the House of Lords where the leading judgement was given by Lord Keith of Kinkel, with whom the other law lords agreed. Lord Keith found imposition of a negative condition requiring something to be done which had 'at least reasonable prospects of success' was permissible.
Grampian conditions have been applied to many consents in the United Kingdom, and their use has also generated a considerable amount of litigation. Many of the cases have involved questions of road access, but give rise to principles applicable to a broader range of circumstances. A useful review of early cases is provided by Scottish Executive, Central Research Unit, The Use and Effectiveness of Planning Agreements, (2001).
The British cases establish that a Grampian condition must be applied for a planning purpose and not for an ulterior motive in order that the condition satisfies the principles laid down in Newbury District Council v Secretary of State for the Environment [1990] 1 All ER 731, including that it must be 'reasonable' in a Wednesbury sense (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 K.B. 223). One of the sources of controversy over the years has been the interpretation of what, in Grampian, was intended by 'at least reasonable prospects of success'.
The applicant in Jones v Secretary of State for Wales and Ogwr Borough Council (1991) 61 P. & C.R. 238 (Jones) wished to build a house, for which access would require a road over a common. The Association of Commoners and the Board of Conservators were not prepared to grant permission. The planning inspector determined that there was no prospect of an agreement being reached during the life of any approval so that he could not apply a Grampian condition and thus refused to grant planning permission. The decision was upheld by the Court of Appeal, but that decision was in turn overturned by the House of Lords and the inspector's decision reinstated.
The decision in Jones was followed by the Court of Appeal in British Railways Board v Secretary of State for the Environment and London Borough of Hounslow (1992) 65 P. & C. R. 402 which found that 'the Secretary of State was not bound to grant planning permission subject to a condition with no reasonable prospect of the condition being satisfied.' The Secretary of State had no power to compel the Council to make land available to access the site, and as Council was opposed to making land available a condition of consent making provision of access a requirement would be futile.
The matter was then appealed to the House of Lords (British Railways Board v Secretary of State for the Environment and others [1993] 3 PLR 125). Lord Keith of Kinkel gave the leading speech, with which the rest of the Court agreed, in which he said: "In the present case British Rail have applied for a planning permission which would cover their own land and also land belonging to Hounslow. Hounslow's land is to be site of the access road which they seek. The proposed condition relates simply to the stage which construction of the access road must have reached before the construction of the houses starts and before the houses are occupied. The condition, if imposed, would not derogate from the planning permission if granted. So the position is essentially that British Rail have applied for planning permission affecting land not in their ownership, a common state of affairs specifically contemplated by the Act. The proposed condition does not relate to land outside the ambit of the permission applied for. Even if it did, the relevant considerations would be the same as those to be applied where an application for planning permission relates to land not in ownership of the applicant. If the condition is of a negative character and appropriate in the light of sound planning principles the fact that it appears to have no reasonable prospects of being implemented does not mean that the grant of planning permission subject to it would be irrational in the Wednesbury sense so that it would be unlawful to grant it. If it is irrational to grant planning permission subject to a condition which has no reasonable prospects of being implemented then it must be no less irrational to refuse planning permission on the ground that a desirable condition has no reasonable prospects of implementation and therefore cannot be imposed. In truth, neither course is irrational. What is appropriate depends on the circumstances and is to be determined in the exercise of the discretion of the planning authority. But the mere fact that a desirable condition appears to have no reasonable prospects of fulfilment does not mean that planning permission must necessarily be refused. Something more is required before that can be the correct result."
He further said that Jones had been wrongly decided and should not be followed.
Section 4.17(1)(f) of the EPA Act provides that a condition of development consent may be imposed if: (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15 (1) applicable to the development the subject of the consent … and s 4.15(1)(a): (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates …
The provision of water and waste water services is a matter of relevance to the development the subject of the development application, but the services would not occur on 'the land to which the development application relates' (s 4.15(1)).
Section 4.17(1)(f) would allow a condition of consent to apply to work outside of the land to which the development application relates. In circumstances where the required works have not yet been designed, and where the assessment and approval would be the responsibility, under Part 5 of the EP&A Act, of a different authority (in this case Sydney Water) s 4.15(1)(f),would not, in my opinion, allow for the consent authority for an approval under Part 4 to impose a condition which would authorise the Applicant directly to provide for construction of services off site, as, until the works are specified in detail, such a condition would be uncertain. However, it would permit imposition of a Grampian condition requiring that the necessary works be authorised by the relevant authority.
Grampian conditions have been identified as such and applied in New South Wales, see McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 and NHVSS at [236].
In Narden Services Ltd v Secretary of State for Scotland 1993 SCLR 434 (Narden), the Court of Session (Scotland) considered an appeal from the recommendations of a reporter in a matter involving three competing planning applications where again one of the issues was arrangements for satisfactory road access. The reporter, for a number of planning reasons, favoured an application which, in terms of details, was less advanced than the other two, and imposed a Grampian condition requiring agreement with transport authorities before the consent could be activated. The Court of Session found that there was no requirement to demonstrate a reasonable prospect of implementation if there was an established legal mechanism to seek the road closure which could be used to enable the condition to be met.
I consider that as the development could not proceed in the absence of water and wastewater services a Grampian condition would be appropriate. However, unlike the Respondent's proposal that such a condition would require a deferred commencement until it was satisfied, I propose that it be an operational condition to be satisfied prior to the issue of the Construction Certificate. This would allow aspects of the proposal, unconnected to the proposed housing precincts, to be commenced prior to provision of water and wastewater services.

Off-site issues

It has long been recognised that the impacts of development are rarely restricted solely to the site on which the development is situated. In a very broad sense the wider effects of development, either singly or cumulatively, are discussed under the umbrella term 'ecological footprint'. At the development application stage of a particular proposal the acceptability of off-site impacts generated or related to a particular development are to be considered during the assessment process
The discussion of off-site impacts often involves consideration of both upstream and downstream effects. In Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24; [2004] FCAFC 190 (the Nathan Dam case) the central issue was whether, in considering approval of the dam under the EPBC Act, the Minister was required to include, in the matters covered in assessment, predictable off-site impacts, which in the particular circumstances of that case included impacts downstream extending to the Coral Sea (up to 500 km from the site). The Full Court held that the Minister was required to consider such impacts. The impacts would arise as a consequence of the increase in irrigated agriculture downstream of the dam made possible by the water supplies from dam.
In Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7 Preston CJ found that greenhouse gas emissions from the burning of coal which would be produced by the proposed Rocky Hill coal project would have impacts globally (as being a contributor, even if a small one, to global atmospheric greenhouse gas concentrations) and this was therefore one of the factors to be taken into account in reaching a decision.
These, and other cases, clearly establish that downstream impacts which would be the consequence of granting a consent are required to be considered. The issue which arises in the present case differs in that it is an upstream impact which requires the building of structures, the wastewater and water supply infrastructure necessary to service the proposed subdivision, which needs to be considered.
In Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 (Hoxton Park) Biscoe J considered an appeal challenging the validity of a development consent for a school at Hoxton Park. Access to the school site would require the construction of a connecting road including a bridge.
The development application in the form as considered by Council and for which Council had granted consent had been amended to exclude the bridge on the basis that the proponent would construct the bridge on behalf of the Council on Council owned land and that the construction of the bridge would require separate assessment under Part 5 of the EP&A Act. At the time of the hearing the Part 5 assessment had commenced but had not been completed.
Biscoe J relied on Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services Ltd (1997) 95 LGERA 86 and the Nathan Dam case as authorities for requiring that the bridge be assessed as part of the school proposal and concluded (at [25]) "In my opinion, it would be artificial and inconsistent with the objects of the EPA Act to make a decision under Part 4 which locked in bridge works on adjacent council owned land and in part of the land to be dedicated to the Council, yet to defer solely for consideration the likely and inextricably linked impacts of the bridgework to be assessed under Part 5."
It is worth noting one of the matters for which consideration would be required in the assessment of the bridge would have been impacts on an Endangered Ecological Community.
The Court of Appeal in Hoxton Park Resident Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 upheld Biscoe J's decision in relation to the bridge issue.

Water and wastewater services

A major difference between the parties related to the provisions of water and wastewater services both within the site and offsite.
The assessment for the supply of services to the site falls into two parts - that assessed under Part 4 of the EP&A Act for services within the boundaries of the site, and that assessed under Part 5 from the boundary of the site to the existing services some 5 km away.
The Respondent argues (submissions paragraph 60) that it is clear that adequate arrangements have not been made in relation to water and wastewater.
The Applicant rejects criticism of the lack of information by reference to cl 54(4) of the EPA Reg: (4) However, the information that a consent authority may request does not include, in relation to building or subdivision work, the information that is required to be attached to an application for a construction certificate. Note. The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted.
Mr Wright argues (Respondent's submissions at paragraph 90) that recourse to cl 54(4) does not mean that the Applicant is 'thereby relieved of the obligation to ensure that infrastructure which is essential to a subdivision avoids scrutiny or assessment under s 4.15 EPA Act' and (submissions paragraph 91) 'If that were the case, an applicant would avoid including any information in a development application for subdivision that would enable a consent authority to evaluate the application.'
The question of how much information is required is a matter of degree - information required will vary depending on the circumstances of the case, and if insufficient information is provided in an application such that the consent authority is not satisfied that they have sufficient information for assessment then the application will fail.
Clause 7.1(2) of the WLEP provides that: (2) Development consent must not be granted for development on land unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.
Public utility infrastructure is defined as any of the supply of water, supply of electricity and the disposal and management of sewage (WLEP cl 7.1(4)).
The objective of cl 7.1 is to ensure that sufficient infrastructure is available to service the development.
Infrastructure for water and sewerage is not currently available, the provision of such infrastructure is obviously essential for the subdivision to be developed.
Clause 7.1(2) establishes a condition precedent, the consent authority must be satisfied that adequate arrangements have been made - absent adequate arrangements the process stops. However, do those adequate arrangements have to define every detail of the proposed water and waste water supply, or would an arrangement which provides a concept and a process to develop the concept into the necessary plans to permit the infrastructure to be built be adequate?
'Arrangements' indicates something less than a formal contract or some other signed and sealed document, but it does imply that they have been discussions between the relevant parties resulting in a consensual decision (Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399 (Codlea)). Adequate is not defined in the LEP and so takes its everyday meaning, which means that minds might differ as to whether the arrangements, if expressed in broad terms rather than in every detail, are adequate.
The issue of provision of services in Codlea was in the context of a local environmental plan in which the relevant clause referred to 'prior acceptable agreements' (Byron Shire Local Environmental Plan 1988, cl 45) whereas cl 7.1(2) WLEP talks about 'acceptable agreements have been made to make that infrastructure available when required'. Does the change of wording have any consequences? Both forms of wording require that agreement has already happened.
The question arose in Eastbrook Pastoral Pty Ltd v Muswellbrook Shire Council [2014] NSWLEC 1144 where the relevant clause in the local environmental plan had similar wording to that in WLEP (Muswellbrook Shire Local Environmental Plan 2009, cl 7.4(2)): (2) Development consent must not be granted for subdivision development on the land to which this clause applies until the land is adequately serviced with water and sewerage, or arrangements satisfactory to the consent authority have been made to service it.
Commissioner Morris noted at [63] that: "The word prior was not included in the LEP clause" and "For these reasons and having regard to the evidence, I am satisfied that the necessary water and sewerage services are available to the site" (at [64]).The water and sewerage authority was, in that case, the Council.
The Applicant's water and wastewater planning options study is Exhibit J. Exhibit R is the cover page of the document with the signatures of the authors from GHD, and Mr Serra from VIG. It is also endorsed by a number of officers of Sydney Water. Their endorsement states that: "I confirm that impacted parties within my business have been consulted, their inputs have been considered and the decisions have been communicated to relevant parties".
Sydney Water's position is made clear in the letter from Mr Ortega of Sydney Water to Wollongong City Council of 30 October 2018 (Attachment D to Exhibit 3, reproduced below:
The statement 'we have reviewed and accepted the report on the conditions that the proponents' indicates that Sydney Water accepts the preferred options in Exhibit J but the conditions require necessary planning approvals to be obtained.
It is noted that the proposal is coming out of sequence from Sydney Water's planning and delivery program. However, this is not a bar to services being provided if there is support from the consent authority and in accord with the Growth Servicing Plan (Exhibit 00) and Sydney Water's policy for Funding Infrastructure to Service Growth.
Page 30 of the Applicant's water and wastewater options study (Exhibit J) states: "assuming that Sydney Water agreed to the preferred options presented above the next stage will include submission of application for a section 73 Certificate [under the Sydney Water Act 1994] and signing of a Developer Works deed following this Sydney Water will be able to confirm Council support for the development".
The Respondent contested strongly for refusal, but in the event that I do not agree with this position proposed two draft deferred consent conditions - D1 a) relates to water and wastewater services: "D1. The Development Consent shall not operate until Council has been satisfied in relation to the following matters: a) Water and Wastewater Servicing A copy of the Part 5 Environmental Planning and Assessment Act 1979 review of environmental factors planning approval for all off-site water and wastewater related infrastructure works required to service the approved development. …"
If the development is not serviced it cannot proceed. Sydney Water infrastructure is approved under Part 5 of the EP&A Act and the council has no decision-making role in the process. Mr Robertson argues that I need to be satisfied that Sydney Water has signed off on the servicing strategy (exhibits J and R). My interpretation of Exhibit 3 attachment D is that Sydney Water's sign off is an in principle approval and Sydney Water requires environmental assessment to be completed, but as the in principal agreement opens a pathway by which the services can be provided, then I consider that adequate arrangements have been made, and that the path to be followed requires environmental assessment.
The situation is not dissimilar from that in Narden where the existence of mechanisms to achieve the required outcome was sufficient for a Grampian condition to be applied.
If the water and wastewater servicing proposals fail the environmental assessment hurdle, then the project as a whole cannot proceed.
Mr Robertson argues that proposed condition D1 a) would have the effect of Council supplanting the role of the certifier, but submits that the Applicant would be prepared to accept the condition as an operational condition to be satisfied prior to the issue of a Construction Certificate. I accept Mr Robertson's position, and require the operational condition to be imposed.

Onsite water and wastewater services

Sydney Water also requires that environmental approvals be obtained for the on-site works related to water and wastewater, and it is agreed that environmental assessment of water and wastewater services on-site is not yet occurred.
The Respondent's suggested deferred commencement condition D1 a) refers only to the off-site works to be assessed under Part 5. Despite the lack of design details for the onsite works covered by Part 4, there was agreement between the engineering experts that, from an engineering perspective, services could be provided and this can be conditioned.

Electricity supply

Proposed deferred commencement condition D1 b) refers to electricity supply, which for the site is provided by Endeavour Energy. "D1. The Development Consent shall not operate until Council has been satisfied in relation to the following matters: … b) Existing electricity line and easement The subdivision as proposed requires the relocation or undergrounding of both of the existing 'in-service' feeders located within the easement which traverses the Site- North. Details are to be provided which enable Council to be satisfied that the overhead powerline can be redirected, removed or undergrounded without any negative environmental impacts or any consequential amendments to the current proposal. Details could be provided in the form of either: • a response from Endeavour Energy's Network's Connection Branch to a Technical review request (Form FPJ6007); and/or • a certified design from a Level 3 Accredited Service Provider approved to design distribution network assets."
Unlike the proposed condition regarding water and wastewater, which would apply to the works off-site, D1 b) is limited to only part of the site. The overhead power line which is to be undergrounded crosses only part of the site. No evidence has been presented that Endeavour Energy would not, when required, agree to the proposed undergrounding. The applicant has suggested a new condition 9 to address concerns about the power line issue.

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (4)