Waldrip v Lake Macquarie City Council and Johnson Property Group Pty Ltd

Land and Environment Court (NSW)|2016-03-18|Before: Ms J, Mr J

Solicitors: Woolf Associates Solicitors (Applicant)

Corporate Legal Office Lake Macquarie City Council (First Respondent)

Sparke Hellmore Lawyers (Second Respondent) File Number(s): 2016/152812 (previously 10735 of 2015)

Site and locality

The development application form describes the land to be developed as Lot 12 DP 1158508, which has an area of 5.855ha (it also refers to Lot 212 DP 1037011, which is the adjoining land at 615 Freemans Drive over which access to the development is to be provided). The Land is located to the north of Freemans Drive, near the village of Cooranbong.
The development is proposed to occupy part of the Land with an area of 1.44ha in the application that was originally lodged and 0.94ha in the amended application (site). The site is irregular in shape, currently vacant and mostly vegetated with a small area of cleared land in the south-western corner.
The Land on which the site is located is predominantly vegetated to the north and south of the site and cleared to the west with a house located immediately to the north - west. To the east, the site adjoins vegetation and a large shed on the applicant's property (651 Freemans Drive) and to the north - east, vegetation and a dwelling with outbuildings (653 Freemans Drive).
To the north, the Land adjoins NCRP, which continues for approximately 2.4 km to the north where construction of the subdivision and houses is underway. To the west, the Land adjoins the southernmost area of NCRP (615 Freemans Drive) which is also owned or controlled by JPG. It is currently vacant but has development consent for residential subdivision (DA1574/2012) granted in February 2013, which includes an area at the southern part for environmental conservation. Further to the west are dwellings on subdivided allotments that front Prescott Avenue. Across Freemans Drive, to the south, is residential development and Avondale Springs, which is a manmade lake.
The surrounding area is predominantly residential or rural-residential development.

North Cooranbong

The proposed WRF will service the development of NCRP, which is the subject of Concept Plan Approval MP07-0147 (Concept Plan Approval) that was granted under the former Part 3A of the EPA Act on 15 December 2008. The Concept Plan Approval provides "201.24ha for residential development, 2.75ha for commercial development, 17.0ha for schools (existing and proposed), 15.25ha for public open space and 119.13ha for environmental conservation". It is anticipated that a lot yield of 2,500 will be achieved in the residential development area, which will be released in stages. The Land is not part of the Concept Plan Approval but adjoins it to the north and the west.
The Concept Plan Approval was assessed on the basis that sewage would be discharged to the Hunter Water Catchment (HWC) sewerage network.
The Waste Industry Competition Act 2006 (WICA) commenced on 8 August 2008. It enables the private sector to develop and operate waste management facilities. It establishes a licensing regime for the private sector in the water and wastewater industries to ensure the continued protection of public health, consumers and the environment, which is governed by IPART. In light of WICA, JPG now proposes to engage Flow Systems Pty Ltd to establish a local water utility (Cooranbong Water) to service NCRP.

Development Application DA/714/2014

Development application DA/714/2014 (original application) was lodged on 15 May 2014. It was notified and objections were received. During the assessment process further information was provided and the original application was amended (application). On 27 July 2015 the application was approved by council subject to conditions. On 24 August 2015, the applicant, as an objector to the original application, filed an appeal under s 98 of the EPA Act, against the council's approval of the amended application. JPR became a party to the appeal.
The following description of the proposed development is in the Environmental Impact Statement (EIS), which was submitted on 14 August 2014, after the original application was lodged: The proposed development will utilise sewage from the JPG controlled lands within the North Cooranbong Residential Precinct to produce high quality water. The sewage will be treated at the facility through a multi-stage process of screening, anaerobic and aerobic processing, chemical treatment, membrane filtration, ultraviolet disinfection and chlorination. The recycled water will be plumbed into houses for non-potable uses such as toilet flushing, washing machines, irrigation and car washing, thus reducing potable water demand. The facility is intended to operate 24 hours, 7 days per week, housed in a low-scale, single level building within an open space setting… The intended capacity of the facility is approximately 1,500kL per day, although it has been designed to achieve this benchmark over time in line with uptake in the residential area surrounding the development. The features of the concept layout are as follows:

The site, approximately 1.44 ha in size, will have permanent vehicle access from a future road created through the subdivision of Lot 12 DP 1158508. The road will connect directly to Freemans Drive at the location of a future signalised intersection;
The site accommodates the main facility building within an enclosed structure which also includes equipment and instrumentation for operation of the treatment process;
The facility building occupies an area of approximately 600m2;
- The site has potential to accommodate tanks for storage of recycled water (2), drinking water (2), and for chlorine (1) and the like. These will be installed on a gradual basis as the development expands;
Hardstand areas for vehicles are provided for delivery and maintenance purposes. A service driveway and concrete hardstand is located on the western side of the operations building that will link to the new road within the subdivision. Initially, access will be via an extension to the existing gravel driveway access which will be replaced at a later stage with a permanent road pavement access via the subdivision of Lot 12 DP 1158508;
Appropriately positioned external lighting will be provided to the external areas of the building which is configured with movement sensors and light sensors to provide additional deterrent against vandalism and graffiti. CCTV monitoring of external areas will be provided for security;
All buildings and facilities will be designed and constructed in accordance with Building Code of Australia (BCA) requirements;
Areas for soft landscaping have been provided to complement the architecture of the facility building and surrounding residential area;
Bushfire management on the site includes the choice of material used in construction; and
Subdivision of the site from the parent lot - being Lot 12 DP 1158508.

The application reduced the site area to 0.94 ha and increased the setback of the facility from the eastern boundary. The Concept Plan approved under the development consent includes a stormwater detention basin in the south west corner of the site, which was previously proposed immediately to the south of the site. As we understand, the application does not include subdivision of the site from the Land.

Statutory framework

At the time that the Application was lodged, the site was in Zone 10 Investigation under LEP 2004. Utility installations were permissible with consent. The objectives of Zone 10 are: (a) provide land for future development and/or conservation, and (b) ensure that land in this zone is thoroughly assessed to identify and substantiate future uses, and (c) provide for limited development of the land and allow that development only where it can be proven not to prejudice or have the potential to prejudice future protection or use of the land, and (d) ensure that land is released in a strategic and efficient manner consistent with the Lifestyle 2020 Strategy, and (e) require comprehensive local environmental studies to substantiate the capability and suitability of land in this zone proposed for rezoning, and (f) provide for sustainable water cycle management.
The Proposal is designated development pursuant to Schedule 3 Part 1 Item 29 of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations), being for sewerage works with an intended processing capacity of more than 2,500 person equivalent capacity per day.
LEP 2014 commenced on 10 October 2014. The site is zoned RU6 Transition under LEP 2014. Water recycling facilities are prohibited in this zone. However, pursuant to cl 1.8A of LEP 2014, a development application that was made but not finally determined prior to commencement of the LEP is to be determined as if the plan had not commenced. The proposal therefore remains permissible with consent but as LEP 2014 has been made, it is "imminent and certain" and must be given weight (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289, and Maygood v Willoughby City Council [2013] NSWLEC 142, Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC 279). The objectives of the RU 6 Transition zone are: • To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To identify land that requires environmental studies to substantiate the capability and suitability of land prior to rezoning. • To limit development that will prejudice or have the potential to prejudice future conservation or development of the land.
A Planning Proposal (PP) to amend LEP 2014 was exhibited from 19 September to 18 October 2015. The PP primarily proposes to rezone the Land from RU6 Transition to Zone R2 Low Density Residential and E2 Environmental Conservation (Option 1) or to Zone R2 Low Density Residential, E2 Environmental Conservation and SP2 Infrastructure (Option 2). Either option would involve amendments to the land use table to add water supply system, sewage reticulation system, sewage treatment plant, and water recycling facility to be permitted with consent in a range of zones, including the R2 and SP2 zones. Council has deferred further action on the PP pending determination of the appeal.
State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to the sewage reticulation network and has the effect of not requiring consent. Therefore, other than where these works are relevant to the works proposed in the application on the site they have not been considered.

The evidence

The Court visited the site and surrounding area and heard the concerns of objectors to the proposal, which principally relate to the impacts on residential amenity from odour, noise, and traffic as well as the loss of trees and the potential for the WRF to malfunction and result in unacceptable impacts, including that excess recycled water may need to be discharged into the surrounding area. They considered that the site was unsuitable for the proposed facility and that it should not be located in close proximity to existing and proposed development. They considered that the sewage from the NCRP should be treated at HWC, as originally approved, or alternatively that the facility should be located on land that forms part of the NCRP.
The Court visited facilities in Pitt Town and Central Park, which are operated by Flow Systems. These facilities were not the same but had similar processes to those proposed.
The Court heard evidence from:

For the applicant Mr S Rose, ecology Dr Wechsler, wastewater Mr A Todoroski, odour
For JPG Dr D Robertson, ecology Dr D Martens, wastewater Dr J Cox, odour Mr O'Connor, planning

The council did not provide expert evidence but relied on the evidence of the experts for JPG.

Ecology

The ecologists agree that the general biodiversity values of the site have been adequately documented in the Flora and Fauna Assessment report prepared by RPS in 2014 (RPS Report).
The site is mostly vegetated with native woodland vegetation, comprising Coastal Plains Scribbly Gum Woodland (Woodland). An area in the south-western corner of the site is cleared and adjoins Woodland in degraded condition. In addition to Woodland, the Land to the south of the site contains Red Mahogany - Apple Paperbark Forest which is a local form of an Endangered Ecological Community (EEC) identified under the Threatened Species Conservation Act (TSC Act). Both the site and the Land contain two threatened flora species listed under the TSC Act, namely Angophora inopina and Grevillia parviflora subsp. Parviflora but a Species Impact Statement (SIS) was not required. The Land also contains Tetratheca juncea, which is also a threatened flora species. These species are also listed under the Environmental Protection and Biodiversity Conservation Act (EPBC Act) and accordingly the project (including the rezoning) was referred to the Commonwealth Department of the Environment which determined that the proposal would not have a significant impact on these species and was not a controlled action.
The surveys in the RPS Report also found that the vegetation on the Land would support a variety of local fauna and contain potential foraging resources that are utilised by species, including birds, bats, possums and gliders, some of which are threatened.
In their Joint report, Dr Robertson and Mr Rose agree that the proposal would remove 0.89ha of Woodland with 22 Angophora inopina and 4 of the 4 Grevillea parviflora subsp.parviflora stems. These figures are based on the original application and the figures in the application that was approved by council are set out below: ITEM Development Approval Site Area 0.94 ha Coastal Plains Scribbly Gum Woodland 0.63 ha - 0.12ha retained* - 0.51ha removed Coastal Plains Scribbly Gum Woodland - disturbed 0.17ha removed Cleared/modified land 0.14ha removed Angophora inopina 20 individuals - 4 retained 16 removed* Grevillea parviflora subsp. parviflora 1 individual (four stems) - removed

Conditions of consent state that 18 Angophora inopina will be retained but these are not clearly identified in any approved plans nor is the area of Woodland to be retained

The vegetation on the Land is part of a corridor that runs north to south and connects to vegetation in the south-west portion of the local government area (LGA) identified under the Native Vegetation and Corridors Map - Version 1 2011 (Corridor Plan). The network now includes land approved under the Concept Plan Approval as environmental conservation areas.
The experts agreed that the different types of corridors in the Corridor Plan had different functions. Dr Robertson referred to "regional" corridors as being large enough not only to allow passage of flora and fauna but to allow flora and fauna to live within these corridors. The smaller the corridor width, the more it acts as an area for fauna to pass through, which is the function of the "local" corridor identified on the Land and the applicant's land. Moreover, the smaller the width limits the type of species that would use these corridors or cross "pinch points".
Dr Robertson placed greater importance on the regional corridors as being areas that could be maintained as being viable into the future. In his opinion, it may not be practical to maintain local corridors in areas with existing development and fragmentation. He considered that the Corridor Plan promotes protection of some of the larger, more intact corridors as a priority, and establishes a hierarchy of corridors within the LGA that should be considered in planning decisions.
Whereas Mr Rose, considered that the Corridor Plan identifies a range of corridors which meet different functions. Local corridors have a significant function for the movement of wildlife and as land is progressively cleared and habitat removed, they assume greater value and significance for the movement of fauna.
The corridor shown on the Corridor Plan runs through the northern end of the Land and within the development area and through the applicant's property to the south. The experts generally agreed that the corridor would be better located along the common boundary of the Land and the applicant's property with vegetation on both sides retained.
The key dispute between the ecologists centred on the width and extent of Woodland that should be retained to maintain a vegetation corridor along the eastern boundary of the site.
The experts generally agree that the existing vegetation on the Land has some degree of fragmentation through clearing. Dr Robertson noted that there is an existing "pinch point" between the site and the EEC to the south where the Woodland narrows to about 20m and that a corridor is largely limited by its narrowest pinch point. Nevertheless, the experts agree that the vegetation on the Land still maintains a good degree of utility for movement of fauna and for dispersal of other species and serves a corridor purpose by providing connectivity to the north and the east.
Dr Robertson considered that to the south, Freemans Drive, the houses and Avondale Springs truncate the existing corridor to a significant degree and would limit movement to the south for a number of species. He acknowledged that mobile animals such as birds and bats could fly over the road and across from patch to patch. Larger animals, like wallabies, would periodically cross the road but it would be a discouragement to a lot of different types of fauna. Dr Robertson accepted that if, in future, land to the south of Freemans Drive was revegetated with tree cover it could restore some connectivity. However, he considered this is unlikely to occur given that the area is already narrowed by the dam, is private land and it would take some years for vegetation to grow.
In Dr Robertson's opinion, if the width of vegetation to be retained on the site (8m to 13m) were also retained on the adjoining land to the east it would achieve a corridor that would vary between 16m and 26m in width and "a viable patch of forest and woodland vegetation that provides some corridor function would be retained". Although, he acknowledged that the width would be similar to the existing "pinch point" and would be much greater in length. Furthermore, he accepted that if the WRF were located on the cleared area of the land to the west of the site, more vegetation could be retained and a wider corridor provided, although he understood that there were other matters which had influenced the layout of the proposal but was not aware of what steps had been undertaken to avoid the extent of vegetation removal.
Mr Rose agreed that Freemans Drive is somewhat of a barrier but not to the same extent as Dr Robertson, as fauna frequently cross roads. Mr Rose believed that there is good potential to rehabilitate fragmented parts of the corridor, including the "pinch point" on the Land and the southern side of Freemans Drive. In his, opinion, the importance of the corridor will increase as land in the area on both sides of Freemans Drive is developed and the rehabilitation of the corridor could be achieved through this development process, particularly as the land to the south of Freemans Drive is in one ownership.
Mr Rose considered that the proposed reduction of the corridor width on the site would effectively truncate the corridor at the northern end of the site, limit the existing connectivity and preclude opportunities for improved connectivity with the land to the south, which would significantly compromise a key part of the Corridor Plan. In his opinion, a local corridor would typically be 80m or less and he considered that the minimum width should be 30m to 40m that could be split between the site and the adjoining land. In his opinion, a preferred option would be to locate the WRF on the cleared area of the Land, including the existing house site. This would result in little loss of vegetation and he considered that it had not been demonstrated that adequate measures had been taken to avoid the loss of vegetation.
The experts also disagree on the impact of the removal of habitat and threatened species from the site (18 Angophora inopina and 4 Grevillea parviflora subsp.parviflora stems) and the future rezoning of the Land in the PP. This disagreement centred on whether the proposed development should be considered in the context of the Concept Plan Approval. In Dr Robertson's opinion, the WRF is part of the wider NCRP, which incorporates the conservation of 119ha of similar or better habitat and the provision of monetary contributions towards environmental protection purposes. The proposal was considered on this basis in the referral under the EPBC Act and in determining whether an SIS was required. Mr Rose stated that the conservation outcomes of the NCRP address the biodiversity impacts of that development, whereas the proposal is a new development application on a separate allotment and its impacts should be assessed independently. In particular, he considered that there is the potential to mitigate the biodiversity losses on the site by relocating the proposal to the cleared area of the Land and that adequate reasons had not been provided as to why this could not be done.

Findings

The Corridor Plan has identified a network of corridors in the south-west portion of the LGA. It includes different types of corridors ranging from large areas of "Remnant Native Vegetation" to a "Rehabilitation Corridor", which is "partially cleared native vegetation and crossing points that are strategically located and could be rehabilitated to enhance fauna movement". The vegetation on the Land is mapped as "Corridor narrowed to 200 metres in width" under the Corridor Plan and is referred to as a "local" corridor by the experts. Whereas the larger corridors were referred to as "Regional".
The experts agree that the Corridor Plan is a reasonable and coherent plan and that the different types of corridors had different functions. The Plan sets aside networks, including regional and local corridors. While regional corridors play an important role in providing habitat for fauna, this does not diminish the role played by local corridors, which will become increasingly important as land is developed. Both need to be considered as part of the strategic rezoning of land and as part of the development process.
Clause 16(b) of LEP 2004 requires that the consent authority is to be satisfied that the proposed development is consistent with the relevant objectives of the zone. Objective (c) of Zone 10 in LEP 2004 provides: (c) provide for limited development of the land and allow that development only where it can be proven not to prejudice or have the potential to prejudice future protection or use of the land, and
Clause 34(4) of LEP 2004 includes the requirement that consent must not be granted unless the consent authority has considered a statement of environmental effects that assesses: (d) vegetation species, vegetation communities, flora and fauna corridors and natural wildlife habitats.
Under LEP 2014, the Land is zoned RU6 Transition, which includes a similar objective to which regard must be had, if the proposal were a permissible use.
Section 2.1.2 of the DCP provides Performance criteria and acceptable solutions for ecological corridors and refers to the Corridor Plan. The Performance criteria seek to identify, protect and enhance corridors (P1) and to avoid or minimise impacts on corridors and further fragmentation in zones such as Zone 10 (P2).
The council assessment report (Report) includes an assessment of the corridor under cl 34 of LEP 2004 and Section 2.1.2 of the DCP. It states that the revised application: …proposes a native vegetation corridor along the eastern site boundary of variable width (between 8.2m and 13m). The width of this corridor is considered substandard however it is acknowledged that an effort has been made within the constraints of the proposed infrastructure to increase the width of the corridor by relocating and/or realigning the infrastructure to increase vegetation retention, and use of retaining walls rather than earth batters to increase vegetation retention. If this variable width corridor width is combined with vegetation on the adjoining allotment the resulting total corridor width would be more acceptable.
The PP for the Land originally sought all of the land to the north of the site to be rezoned to R2 however, in the exhibited PP part of this area is to be zoned E2, which presumably would facilitate retention of threatened species on the land and potentially provide a link to the E2 zoned land to the north east. The width of the E2 land to the north of the site is significantly wider than the corridor on the site proposed in the PP, which generally reflects that proposed in the application. However, the PP does not apply to the adjoining land and therefore does not indicate a corridor on that land nor the missing link between the Land and the corridor to the north east. It therefore does not provide certainty that the objectives of the Corridor Plan would be achieved. While it may be considered as an exhibited plan it has been deferred by council. It is therefore not imminent or certain and can be given little weight.
We accept Mr Rose's evidence that the vegetation proposed to be retained along the eastern boundary of the site is of insufficient width to adequately fulfil the role of a corridor. Even if this were increased to 15m on the site, which is the minimum width accepted by Mr Rose but only if a similar width were provided on the adjoining land, there is no certainty that the combined width will occur. This width would be well short of the 80m suggested by Mr Rose as being what is normally required for a local corridor. It would also be similar in width to the 20m wide area identified as being a "pinch point" at the south of the site. It would result in a further "pinch point" that is some 160m long and 15m wide on the site (and potentially only 30m wide with the adjoining land). The proposed width is unacceptable and it would provide little connectivity and would effectively truncate the corridor identified in the Corridor Plan at the northern end of the site.
The approved plans and conditions do not identify vegetation to be retained or removed, other than four indicative locations of Angophora inopina and a landscaped buffer around the north and west boundary of the site. Although Condition 10 requires all native vegetation on the site to be retained unless it has been identified for removal in the approved plans or is within 5m of a building and not identified for retention. From the plans it could be assumed that all existing vegetation other than the four Angophora inopina are to be removed. The approved plans dimension the setback of the building and tanks from the eastern boundary but they do not identify a vegetation corridor, the extent of Woodland to be retained or the location of specific trees. The only reference to a corridor is in the requirement for a vegetation management plan (condition 11) and replacement tree planting (condition 12). Furthermore, condition 10 has the potential to permit the removal of trees within 5m of the buildings and consequently further reduce the width of the corridor. While it is clearly intended that the variable width corridor be provided, the approved plans and conditions lack certainty.
The ecology experts agreed it is appropriate to apply the "avoid, mitigate, offset" approach when considering ecological impacts. The experts also agreed that the vegetation on the land was fragmented and degraded in part but was significant enough to consider avoidance.
Mr Galasso SC, for JPG, submits that: the "avoid, mitigate, offset" approach does not require complete avoidance of any potentially significant areas of native vegetation. What is required is a reasonable approach that takes into account the quality and value of the habitat or populations that will be effected as well as the promotion and co-ordination of the orderly and economic development of land, and, in the present circumstances, the need to provide essential infrastructure services, (see generally Bulga Milbrodale Progress Association v Minister for Planning and Infrastructure (2013) 194 LGERA 347 at [147]-[153]). The second respondent submits that it has taken reasonable avoidance action including: (a) Ensuring the proposed development was not located on or in a position that will have significant impacts on the endangered ecological community present at the southern end of the site; (b) Amending the proposal to provide a wider setback to the eastern boundary for corridor purposes; (c) Amending the proposal to reduce the area of undisturbed vegetation to be removed and to avoid removing individual threatened species, including the removal of any Tetratheca juncea (see Exhibit 1, Tab 13); and (d) Implementing other avoidance measures as set out in the Flora and Fauna Assessment for the EIS, such as retention of hollow-bearing trees. Taking into account the already fragmented and degraded character of the relevant vegetation, the second respondent submits that reasonable action has been taken to avoid impacts on native vegetation, including threatened species. The Council's ecological officer accepted that "the revised threatened flora species retention plan has demonstrated an effort to avoid impacts to significant habitat as per DCP1 2.1.1".
We accept that steps have been taken to avoid the removal of the vegetation on the site and that other areas of vegetation are proposed to be retained on the Land (although there is no certainty as this is not included as conditions of consent for the application and the PP has not been made). However, there is the potential to avoid removal of vegetation and to provide a greater corridor width as there is a cleared area within the Land to the west of the site which would be suitable for the proposed development. The proposed site plan indicates that this area could accommodate four to seven residential allotments if a future rezoning were to proceed. However, the land is in Zone 10 - Investigation and at present there is no entitlement to residential development. The future zoning of the Land must balance the conservation and development objectives for the Land. The loss of these allotments to accommodate the WRF would not be unreasonable and would enable a corridor to be maintained. It would also address the issues in relation to odour, which are discussed below.
Furthermore, the barrier posed by Freemans Drive is not a reason to accept a lesser corridor width on the site. The Corridor Plan recognises Freemans Drive and other roads as a "crossing Point - cleared potential barrier of 10-70m width that interrupts native vegetation but could be crossed by mobile fauna". Land on the southern side of Freemans Drive is identified in the Corridor Plan as a "Rehabilitation corridor" that connects to a "Riparian Corridor". Freemans Drive currently acts as a barrier, which is unlikely to change, but it is a short distance for fauna to cross and any future urban development of the land to the south would involve a consideration of the Corridor Plan and the identified corridor on that land. Notably 614 Freemans Drive, opposite the Land, is in the same ownership as the Land and a significant area to the south (about 199.1ha) is land controlled by JPG or its partners. Currently, the potential for connectivity of the corridor exists on both sides of Freemans Drive. However, if the width is reduced on the site as proposed, that potential will be removed and the site would become another "crossing point". There is also no suitable alternative location in the vicinity where a connection to the southern side of Freemans Drive could be achieved.
As a stand-alone application, the removal of threatened species from the site needs to be independently assessed. However, part of this assessment would involve a consideration of the extent of habitat in the area, including the areas retained in NCRP. An SIS was not required and the referral under the EPBC Act was considered on this basis and it was found that there would be no significant impact on threatened species as a whole. However, as discussed above, the proposal will remove most of the Woodland on the site and the potential for an effective corridor. This is not acceptable given that there is a reasonable alternative to locate the WRF on part of the Land which is cleared.
A local corridor is identified on the Land and the adjoining land in the Corridor Plan, which would link at least the corridor in the Concept Plan Approval to the north east of the Land with the EEC on the southern end of the Land, which is proposed to be zoned E2 - Environmental Conservation in the PP and adjoins land to the west that is zoned E2 under LEP 2014. It also has the potential to provide connectivity to the south across Freemans Drive. Such a corridor could play an important connectivity role in the movement of fauna as the area is developed for residential development. The corridor proposed for the site in the application would not effectively serve this purpose and would therefore not be consistent with the Objective (c) of Zone 10 in LEP 2004 as it would have the potential to prejudice future protection or development of the Land. It also does not adequately address the requirements of cl 34 of LEP 2004 or s 2.1.2 of the DCP. Notably, the RU6 Transition Zone under LEP 2014 includes a similar objective and arguably a use that is not permissible within this zone and may have the potential to prejudice the future conservation or development of the Land.

Odour

The experts agree that consistent with the Environmental Protection Authority Approved methods (EPA Approved Methods) the appropriate assessment criterion is 2 odour units (OU) (99 percentile). A value of 1 OU is the theoretical level at which odour becomes detectable but not necessarily distinguishable and 2OU should not be exceeded 99% of the time at any sensitive residential receptors. The key disagreement between Ms Cox and Mr Todoroski is the inputs and outcome of the odour modelling and whether the criterion would be exceeded on adjoining land.
As part of the EIS for the proposal an odour impact assessment was prepared by Pacific Environment Limited dated 7 August 2014 (Odour Report). In reviewing the Odour Report the experts agree that it does not reflect the likely odour impacts, principally because it undertook AERMOD modelling based on emissions collected at the Pitt Town facility on only 18 March 2013 and did not reflect the current design of the proposal, as they understand it. Further emission data from Pitt Town on 5 February 2013 and 20 November 2014 are available and higher odour emissions have been measured at Pitt Town than were used in the Odour Report.
Consequently, the experts undertook further modelling. They recognised that there were issues related to the selection of odour emission rates and the experts modelled several odour scenarios using CALPUFF (as opposed to AERMOD used in the Odour Report given that CALPUFF typically deals better with the high frequency of low wind speed and calm periods evident in the meteorological data for Cooranbong). The odour scenarios modelled are as follows: a. A base case scenario per the Odour Report (to compare the results from AERMOD with CALPUFF). b. An average scenario using: i. Pre anoxic chamber - average odour levels of all data measured ii. Aerobic chamber - average odour levels of all data measured iii. Post anoxic chamber - average odour levels of all data measured iv. Membrane chamber - average odour levels of all data measured v. OCU vent - average of the November 2014 data, c. A maximum scenario using the maximum measured odour levels for all sources modelled in the Odour Report. d. The average scenario per (b) with the exception of the OCU vent set to 500 OU. e. The maximum scenario per (c) with the exception of the OCU vent set to ten times the maximum measured, that is, 18,800 OU
The Experts agree that: 1. The CALPUFF modelling produces lower results than otherwise identical AERMOD modelling but does not represent the likely odour impacts of the proposal (Scenario (a)) 2. The modelling results for Scenarios (b) and (c) indicate that off-site odour impacts may arise and that some form of odour control is necessary to mitigate potential impacts, particularly for the odour control unit (OCU) vent. 3. The modelling results for Scenario (d) indicate that acceptable levels of odour are likely if the OCU vent is maintained to a level not exceeding 500 OU, and if the other sources are controlled to not exceed the average levels measured at Pitt Town, and the modelled emission rates. 4. The modelling results for Scenario (e) indicate that under potential upset conditions, e.g. with OCU vent emissions ten times the highest measured, significant impacts could arise, but this would be an unlikely, or very infrequent situation.
The experts agree that the OCU vent is a significant contributor to odour but that the other sources (the pre anoxic chamber, the aerobic chamber, the post anoxic chamber and the membrane chamber) also contribute. Mr Todoroski was concerned that in scenario (d) all of the other sources are modelled at an average rate. If those other sources are at a higher rate, equivalent to what has been measured at Pitt Town, the 2 OU contour changes quite dramatically as shown in a further model he undertook (Scenario (f)), which was the maximum scenario per (c) with the exception of the OCU vent set to 500 OU. He considered this option to be the most likely scenario and he noted that s 3.3.4 of the EPA Approved Methods indicates that maximum rates of emissions should be used in modelling to account for variability in emission rates.
Mr Todoroski also remained concerned that there were issues in the odour emission rates used in the modelling and there is significant variability in the three sets of available odour data. In particular, he considered the levels in the March 2013 for the chamber membrane and the anoxic chamber to be anomalously low as a result of the method of sampling odour using a flux hood, which he considered to be incorrectly adjusted. He also noted that the proposal does not have the aerobic and post anoxic chambers enclosed as is the case at Pitt Town. Although, in the emission data for Pitt Town it was assumed that these did not vent into the OCU but the odours were based on a much smaller surface area than that proposed in the development.
Consequently, Mr Todoroski considered Scenario (d) is unlikely to be consistently achieved as it is below the maximum levels measured, relies on a maximum level of 2.6 OU anywhere on the site, which is less than what would have been observed at Pitt Town, and on factors such as sealed tanks and no fugitive emissions. Ms Cox considered scenario (d) to be reasonable and achievable, although as an average she recognised that there would be times when the odour is less and times when it is more. She accepted that the location of the 1 OU contour on Scenario (d) might reach 2 OU on occasion. She stated that there was no record of complaints from residents near Pitt Town and the odours observed on site were acceptable.
The difference between these two models is that in Scenario (d), the 2 OU contour appears to be located generally within the Land or just over the eastern boundary, although the boundaries of the Land are not shown on the scenario mapping and it is therefore difficult to be accurate. Whereas, in Scenario (f), the 2 OU contour clearly encroaches onto adjoining properties, including houses.
All the models are based on the facility fully functioning when all the stages of the NCRP have been implemented to service 2500 lots. Mr Todoroski acknowledged that the degree of odour production would be lower in the initial stages than in the later stages. However, he considered that this could also cause issues as the design of the OCU vent, to be set at 500 OU, was based on the maximum flow rate from the fully functioning facility. The early stages could produce lower flow rates out of the vent, which may result in poorer dispersion and the impacts would potentially increase.
Mr Todoroski accepted that if the aerobic and post anoxic chambers were covered and vented under negative pressure there would be a further reduction in odour emissions. In response to questioning from Mr Galasso, he also accepted that conditions could be imposed which established a regime where emissions from the OCU vent are not greater than 500 OU and development applications for each of the stages of the NCRP demonstrate that the OCU achieves 500 OU and, if not, the OCU is to be upgraded or replaced.

Findings

The key differences between the odour experts is that Ms Cox considers the modelling to be conservative whereas, Mr Todoroski, questions a number of the inputs in the modelling. As a consequence of this difference, the experts held divergent opinions about the outputs of the models. Ms Cox found Scenario D towards F to be plausible and Mr Todoroski found scenario F to be more realistic. A summary of the modelling data inputs based on the emissions at Pitt Town is set out below: February 2013 (OU) March 2013 (OU) November 2014 (OU) Average (OU) MBR - Chamber membrane 789 34 197 340 MBR - Aerobic Membrane - 42 362 202 MBR Anoxic Chamber 215 52 431 233 FBT OCU vent 70 446 1450* 1450*

Average for November 2014 used in Scenario (b)

The results are variable, in particular we accept Mr Todoroski's evidence that the March 2013 results for the Chamber membrane and the Anoxic chamber are low and would skew the average results and that the average in Scenario (d) is not likely to be consistently achieved. Even on Ms Cox's evidence it would be exceeded. Given this variability, s 3.3.4 of the EPA Approved Methods indicates that maximum rates of emissions should be used in modelling. On this basis, Scenario (f) is more likely to occur and under this scenario, the 2 OU contour is outside the Land. This is unacceptable as it may impact on existing sensitive receptors, which should include not just an existing dwelling but the areas around the dwelling, which are used on a regular basis, such as outdoor living areas, BBQs and swimming pools. The potential encroachment of the 2 OU contour onto adjoining land is further exacerbated by the potential for this land to be rezoned for urban development and odour impacts could prejudice this outcome.
For similar reasons discussed in relation to the vegetation corridor, the potential odour impacts would not be consistent with the objectives for Zone 10 in LEP 2004 and Zone RU6 in LEP 2014.
The proposed changes, including limiting the OCU to 500 OU and if the aerobic and post anoxic chambers were covered and vented under negative pressure, would reduce the odour emissions. Also a regime in the proposed conditions would limit the emissions to 2 OU at the boundaries of the site and provide some certainty that the odour impacts could be addressed prior to each residential stage of the NCRP being approved, although potentially this may require changes to the facility or to the NCRP.
If the approval of the WRF facility is to meet the needs of NCRP, the Court needs to be satisfied that this can occur. Consequently, relocating the facility further from the eastern boundary will move the potential for odour impacts away from existing and likely future receptors to the east. Relocating the facility to the cleared area of the Land and deleting the potential for residential development within this area will also reduce the potential for odour impacts to the west.
Following the hearing, the parties have submitted different versions of condition (Condition 37) for the regime outlined above and submissions in relation to these differences, but an agreed position has not been reached. Our findings in this appeal will require changes to the proposal, if it is to be approved, and further changes to the conditions. If condition 37 remains in dispute we shall adjudicate on this once final plans and conditions are filed.

Recycled water use

The key issue in dispute between Dr Wechsler and Dr Martens relates to whether the demand for recycled water in the NCRP would balance the amount of recycled water produced in the WRF.
The WRF would receive raw sewage from NCRP and return recycled water that would be used in the dwellings for external use, toilet flushing and washing machines. Potable water would be used internally for kitchen, bathroom and other internal taps. The cost to the consumer of the recycled water would be less than the cost of potable water.
In Dr Martens' opinion, the demand for recycled water is not a relevant consideration as the application is for a water recycling facility not the proposed use of recycled water at residential premises, which would be considered in the development applications for each stage of the NCRP when figures on the actual demand for recycled water would be known. Nevertheless, in his Statement of Evidence, Dr Martens provided models to estimate the likely demand for recycled water and whether this would exceed the supply generated by the fully operating WRF.
In Table 1, Dr Martens addresses domestic water consumption as a proportion of different components (eg external, toilet flushing, washing machine and potable) contribution to total demand and to sewage generation. The data is based on BASIX and is from the Staging Assessment Report prepared by Whitehead and Associates (Whitehead Report) for the Review of Environmental Factors for NCRP. He also referred to other figures such as ABS data on domestic water consumption to establish the theoretical demand for recycled water. These figures generally indicate that there would be greater sewage generated than demand for recycled water.
In Table 2, Dr Martens reviewed the actual demand for recycled water at Pitt Town, which indicate that on average there is a net shortfall in the sewage generated compared to the demand for recycled water demand. He then applied these figures to NCRP, with some adjustment for seasonal variation and lot sizes and concluded that demand for recycled water would be marginally greater than supply (Table 3).
Dr Martens also provided an alternate assessment for NCRP based on the proportions in the Whitehead Report rather than the actual figures from Pitt Town (Table 4) which indicates a surplus of recycled water. In his opinion, any potential surplus of recycled water could be managed within the NCRP through its use on public open spaces and that this can be monitored as part of the approval process for future stages of the NCRP.
Dr Wechsler considered that the water balance model prepared by Dr Martens did not take into account that consumers may be reluctant to use recycled water and that many might instead utilise town water or rainwater harvesting. He questioned the validity of Pitt Town data being applied to NCRP due to the smaller lot sizes. He also thought that the excess of recycled water produced over the demand would be greater than that calculated by Dr Martens under his various data scenarios. He raised concerns that if there is excess recycled water it would need to be either stored or irrigated and that neither option had been considered in the proposal.

Health impacts

Dr Wechsler and Dr Martens disagreed on the health risks posed by the WRF from the potential of contaminated vapours to spread to adjoining properties. Dr Wechsler referred to technical articles to support his position that aerated sewage treatment plants emit aerosol borne microbial contamination. Dr Martens' evidence was based on more current technologies for wastewater treatment, which result in a very low risk of aerosol production and health risks from the WRF.

Findings

The Applicant contends that JPG has not demonstrated that there will be a demand for recycled water commensurate with the amount of water produced at the WRF.
We do not accept Dr Wechsler's concerns that people may not use recycled water. If the WRF is approved, the cost of recycled water will be less than potable and there is a growing acceptance and a demonstrated demand in the community for using recycled water, such as at Pitt Town where the demand exceeds supply.
Dr Wechsler's evidence and the cross examination of Dr Martens by Ms Walker, for the applicant, raise doubts about the data on water consumption and recycled water demand that were used as the basis for Dr Martens' conclusions that there is likely to be a recycled water deficit at NCRP, particularly the assumption that the Pitt Town consumption rates for recycled water would be the same in NCRP.
However, Dr Martens provided a range of water balance models, including the "conservative" model in Table 4 that is based on the figures in the Whitehead Report that Ms Walker submits should be used, which results in a surplus of recycled water. Ms Walker submits that there is inadequate information about how the excess recycled water is to be addressed, particularly as there are concerns about irrigation as the area is subject to flooding and no storage areas have been identified.
The models used by Dr Martens are based on the completed NCRP and only the domestic use of recycled water. Even if the supply for recycled water exceeds the domestic demand this can be monitored and managed as part of development applications for the release of future stages of NCRP. There is the potential (subject to approval) for recycled water to be used within public facilities such as open space and schools. Dr Martens estimates that when completed NCRP would include 12ha of public open space that could be irrigated with recycled water. There is also the potential for excess recycled water to be stored within NCRP.
We accept that irrigation or storage or a combination of both would be a practical and possible solution for any surplus recycled water. However, water balance figures for the further stages of NCRP can only be accurately predicted once early stage data becomes available. This should be assessed as part of the approval process for future stages to determine whether there is likely to be a surplus or deficit of recycled water based on relevant data. If the former is the case, the appropriate use of any surplus should be determined or limitations on the development may be required.
The parties have agreed on a condition (condition 32), which requires that irrigation of land with recycled water produced by the WRF cannot occur without further approval and/or licence. This condition should be extended to require that the supply and demand for recycled water in NCRP is monitored and included with each development application for further stages of the NCRP, including adequate measures to deal with any excess recycled water. With these requirements we are satisfied that the recycled water produced at the WRF can be appropriately managed.
Concerning the possibility of health risks emanating from the proposed WRF, based on the evidence of the expert witnesses, we accept the evidence of Dr Martens. The articles that Dr Wechsler relied on were at least 28 years old and did not appear to address the actual mode of sewage treatment that was to be incorporated in the proposed WRF. Dr Martens' evidence was based on more current technologies for wastewater treatment. Mr Galasso provided more recent literature, which indicates that it is unlikely that the facility will pose health risks due to the emission of any airborne contaminants and there is no health-related matter which should prevent approval of the WRF.
In relation to the contamination risks from the pressurised sewer system we accept Mr Galasso's submission that the Court has no jurisdiction to consider the risks associated with the sewerage reticulation network as it is not part of this appeal and has been assessed and approved. That network is the subject of a licence under WICA and is development permissible without consent under cl 106 of SEPP Infrastructure. IPART is therefore the regulator for the sewerage reticulation network.
The other issues that were in dispute between Dr Wechsler and Dr Martens have either been resolved through the provision of further information or would not be a reason to refuse the application for the WRF.

Planning

The applicant contends that the proposal is inconsistent with objective (c) of the Zone 10 Investigation zone under LEP 2004 and is a prohibited use under LEP 2014, which should be given weight. The applicant did not provide any planning evidence to support these contentions but Ms Walker cross examined Mr O'Connor and relied on the evidence of the experts in relation to odour impacts, vegetation removal and waste water.
Objective (c) of Zone 10 Investigation under LEP 2004 states: (c) provide for limited development of the land and allow that development only where it can be proven not to prejudice or have the potential to prejudice future protection or use of the land, and
In Mr O'Connor's opinion the proposed development meets the objective because it is one of the limited types of development permitted with consent in the zone and it represents a limited form of development when the footprint of the building is compared with the site area and the retention of native vegetation on the site are taken into account.
Furthermore, the LEP 2014 should be given little weight given that council has supported the PP which established the proposed future use of the site and which would permit the proposal.
Even if LEP 2014 is given weight, the proposed development is consistent with the objectives of the RU6 Transition Zone of: protecting and maintaining land which provides a transition between rural and other land uses; and limiting development that will prejudice future conservation or development of the land.
Mr O'Connor considers that the proposed development maintains an adequate buffer between it and adjoining land to the east, which is also zoned RU6 Transition Zone, particularly given the extent of vegetation retained and to be planted on the site. It achieves an appropriate balance between conservation and future development of the Land. It will not have unacceptable amenity impacts in terms of odour and health (or other impacts) on adjoining land and has an acceptable visual impact.

Findings

For the reasons discussed in this judgment, we have found that the proposed location of the proposal on the site would result in an unacceptable impact on the vegetation corridor and has the potential to result in adverse odour impacts on the adjoining land to the east. The proposal in its current form would have the potential to prejudice future protection or use of the land and is therefore not consistent with objective (c) of Zone 10 Investigation under LEP 2004.
Furthermore, as LEP 2014 has commenced it is imminent and certain and is to be given weight. Whereas the PP has not been adopted by council and consequently is neither imminent nor certain and is to be given little weight.
Similarly the proposal in its current form would prejudice future conservation or development of the land and does not provide a transition with adjoining land uses. It is therefore not consistent with the objectives of the RU6 Transition Zone under LEP 2014.
However, we are satisfied that if the proposal were amended as discussed in this judgment it would be consistent with the above objectives.

Conclusion

The development in its current form impacts on the potential to conserve a wildlife corridor on the Land and the adjoining property and may result in odour impacts, which would impact on existing and future residential use of the adjoining property and the Land. The proposed changes discussed during the hearing are not sufficient to address these concerns. However, the impacts would be ameliorated to an acceptable level if the WRF was to be located within the cleared area of the Land and set back a minimum of 30m from the eastern boundary to provide a vegetation corridor with any buildings or structures set back a further 5m from the corridor to provide a buffer for any batters, retaining walls or tree removal. A minimum 5m wide landscape buffer is to be provided along the western boundary to adequately screen the development.
As the application relates to the whole of the Land, we are satisfied that these changes are within the scope of an amended application and not a new development application. For certainty, it is appropriate that they be incorporated into amended plans rather than as conditions of consent. Any amended plans should be fully dimensioned and notated to show the location and boundaries of the WRF on the Land, the width of the vegetation corridor and that trees within it are to be retained and managed in accordance with a vegetation management plan (VMP).
The extent of the proposed changes to the setback of the proposal was not discussed during the hearing. In these circumstances, it is appropriate that JPG be given time to consider the implications of this decision, and whether it wishes to amend the application in accordance with the findings of this judgment. In which case, the development application, as amended, could be capable of approval subject to conditions. These conditions should include the requirement that information on the usage in NCRP of recycled water produced at the WRF is to be provided with each development application for future stages of the NCRP as well as measures to deal with any excess recycled water.
Alternatively, if JPG does not choose to prepare the required amended plans, the application will be refused in chambers.

Directions

The Court makes the following Directions: 1. The Second Respondent is to advise by ecourt on or before 7 June 2016 whether it chooses to amend the application in accordance with the findings in this judgment. 2. If the Second Respondent chooses to amend the application, the parties are to file by ecourt on or before 14 June 2016 agreed directions as to the filing of the amended plans, supporting information and agreed conditions; 3. Upon the receipt of the satisfactory information in Direction 2, orders will be made in Chambers approving the application. 4. If the Second Respondent chooses not to amend the application, orders will be made in Chambers refusing the application. Annelise Tuor Ross Speers Commissioner of the Court Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2016

(2013) 194 LGERA 347

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Cases Cited (2)

Cited By (1)