Yates and anor v Blue Mountains City Council

Judgment 1SENIOR COMMISSIONER: Development in Sydney's water catchment is required to comply with State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011. Clause 10 of that policy requires that a consent authority must not grant consent to the carrying out of development in the drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. Neutral or beneficial effect on water quality is known in shorthand terms as NorBE. 2The State Environmental Planning Policy defines two terms that are relevant for these proceedings. The first is a NorBE Guideline which is a document entitled Neutral Beneficial Effect on Water Quality Assessment Guideline 2011 that was prepared by the authority, published in The Gazette and is available through the legislation website. It is also able to be accessed through the Catchment Authority's website. The NorBE Tool is a tool that is set out in appendix 1 to the NorBE Guideline. The Catchment Authority has also published a manual designed to assist those who are undertaking preparation of applications within the catchment on the use of MUSIC, a software program that is used in a fashion that will be discussed later. 3In these proceedings, I am dealing with development application X/171/2012 which seeks development consent for the construction of two tennis courts on top of the existing stormwater pond as described in the application and, as subsequently amended in these proceedings, associated stormwater control works on Lots 6, 7, 8, 9, 10, 12 and 14 in Deposited Plan 1135373 located at Wentworth Falls. These allotments are part of a subdivision granted consent in 2008 by Blue Mountains City Council. 4One of the elements that was required, as part of that subdivision, was the construction of what is described as a "rain garden" across the northern elements of Lots 7 and 8 in that proposed subdivision. The use of the rain garden which is envisaged in the original plans (and as consented to in the amended development consent, a document to which I will return) was an essential element of achieving NorBE if the subdivision was to be approved. 5The subdivision is to the north of the Great Western Highway in the Wentworth Falls urban area and has on its northern boundary elements of the Wentworth Falls Golf Club's golf course and has elements of this golf course also along the western boundary. The whole of the subdivision site is zoned Living Bushland Conservation under the Blue Mountains Local Environmental Plan 2005 (LEP). 6Two aspects of that LEP are relevant to be considered in these proceedings. They are the zone objectives for the zone contained in cl 24 of the LEP and building envelope controls which are development standards set out in sch 2 pt 3 div 1 Building Envelope as applicable to proposed residential development in this zone. The standards that are set out in the building envelope controls are amenable to be being set aside if objections to compliance are sustained pursuant to State Environment Planning Policy No 1. 7In this case, the proposals for the erection of the tennis courts on each of Lots 7 and 8 do not comply with either the site coverage or landscaped area development standards contained in that element of sch 2, but objections pursuant to State Environmental Planning Policy No 1 have been prepared by Mr Chapman, consultant town planner, on behalf of the applicant and require further consideration. 8The Living - Bushland Conservation zone contains a number of objectives, some of which are relevant in these proceedings. (a) To allow for residential development in the form of single detached dwellings where this development is within the capacity of the environment to sustain such development and is undertaken in a manner that minimises impact on environmentally sensitive areas. (b) To preserve and re-establish native bushland in areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire. (c) To permit only low density residential land uses and to retain large allotment sizes in fringe urban locations or locations that do not have reasonable access to services and facilities. (d) To allow a limited range of non-residential land uses only where these are conducted in association with a predominantly residential land use. (e) To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for and harmonise with the bushland character of the locality. (f) To encourage the retention and re-establishment of native bushland along significant fauna corridors and in areas of high visual significance, including escarpment areas and along the Regional Transport Corridor. 9As discussed later, only some of these six objectives are engaged. The provisions in sch 2 pt 3 dealing with the controls have provisions in cl 3 of that element that deal with and set the standards for site coverage and soft landscaped area as I have discussed. 10For the purposes of NorBE, the State Environmental Planning Policy for Sydney's catchment places a prohibition on the approval of development in the catchment unless I am satisfied that NorBE is achieved as a consequence of that proposal and not otherwise. To do so, I need to have regard to the guideline and to the material that is contained in the manual designed to provide assistance to those who are using the MUSIC software in using the MUSIC software for the purpose of undertaking a preliminary assessment in support of an application for such development to demonstrate that NorBE is achieved. The guidelines were exhibit 12 in the proceedings and incorporated the NorBE Tool at appendix 1. 11As I have already indicated, the Catchment Authority encourages the use of the MUSIC software for the preparation of material in support of development applications as appropriate. The document prepared by the Authority called Using MUSIC in Sydney's Drinking Water Catchment, a manual prepared, amongst other things, by two officers of the authority who gave evidence in these proceedings, is a software model whose long title is the "Model for Urban Stormwater Improvement Conceptualisation". It is described in the Catchment Authority's manual as being a water quality decision support tool for stormwater managers, and I quote further: It helps the planning and design to a conceptual level of appropriate stormwater management systems for an individual development to a catchment level. The MUSIC modelling software was developed by researchers and practitioners of the former Cooperative Research Centre (CRC) for catchment hydrology and the current eWater CRC and represents an accumulation of the best available knowledge and research into urban and rural stormwater management in Australia. MUSIC estimates stormwater pollutant generation and simulates the performance of stormwater treatment devices individually and as part of a treatment train (individual devices connected in series to improve overall treatment performance). 12MUSIC is used to assist the authority in its assessment and to assist developers in the preparation of their applications. MUSIC was used for the original subdivision which was approved in 2008 based on the condition of the site as it was in 2007. 13What does MUSIC do? MUSIC does two fundamental things as I understand it. First, it enables an assessment of what is the predevelopment of stormwater position for a particular site, and then after applying the relevant treatment options that might be considered for such a site post-development based on the post-development state of the site, does a future use scenario to comply with cl 10 of the Catchment SEPP. It is necessary to demonstrate that the original model is not only setting a standard that is met by the post-development model, but also, as set out on p 4 of the Using MUSIC document prepared by the Authority, the Catchment Authority requires a modelled improvement of ten per cent for total suspended solids, total phosphorous and total nitrogen loads to ensure NorBE is achieved. This, I assume, is an adoption of a precautionary approach to those matters. 14In developing NorBE assessments using MUSIC, the manual that is produced by the Authority sets out a number of steps to be undertaken. The first, step 1, comprises a site analysis. There are a number of subelements in step 1. The first is to identify current land uses; the second is to identify the catchment and sub-catchments involved; the third is to identify drainage patterns; the fourth identifies site opportunities and constraints and the fifth considers zoning and/or proposed use. 15The "current land uses" is described in the manual as involving gathering of information about current land use from the owner and developer, existing maps and from other available property information. The second of the elements to the step requires an inspection of the site to become familiar with the overall site characteristics and confirm that the information gathered is accurate, including current land use, topography, soils and natural features such as stands of existing vegetation, flow pathways and waterways. The steps that then follow require the adoption of a node within the software. This step is the fundamental first necessary step to considering what might be the approach to be taken in the modelling. 16The manual shows, at p 18, that MUSIC currently incorporates five default source nodes, they being "urban", "agricultural", "forest", "user defined" and "imported data". Much of the debate about how MUSIC should be applied in these proceedings revolved around the choice of node to be applied to this site. The position that was adopted originally when the subdivision application was made was to adopt the forest node. The application that resulted assumed, based on an analysis of the site at that time, 88% forest cover. 17For the purposes of these proceedings, there is a debate about whether or not the forest node is appropriate to be adopted or, if it is to be adopted, what percentage forest cover should be attributed to the site as at 2007. The answer to those two questions determines necessarily the outcome of the model and, thus, the standard required to be met by the stormwater discharge to satisfy the NorBE test. 18It is important to note, also on p 18 of the manual, after the description of the node types, that MUSIC modelling in the drinking water catchment should only use the urban, agricultural and forest nodes together with modified base flow and storm flow pollutant generation values as shown (in tables that are presently irrelevant). The manual also notes, subsequently, that it is possible to ascribe different nodes to various elements of a site and produce what amounts to an aggregated stormwater outcome as a consequence. 19Much of the debate that followed, followed from and necessarily consequent on what node choice was made. Much debate arose with respect to how table 4.1, the translation of surface types and land use zoning into MUSIC source nodes, should relevantly be applied. Although an interesting discussion, I am satisfied that the choice of source node is a necessary precursor to any consideration of how matters should be used in table 4.1 for input to the model. 20The position that was described by Dr Banens, project officer at the Catchment Authority, was that the basic choice of node arose originally with an applicant in the data that was accepted from the applicant. The acceptance by the Authority of the node and the data derived from it was, on his evidence, not accepted uncritically but was followed by a site visit to ground truth and verify the assumptions that had been made in the MUSIC modelling data provided. It was his evidence that, in this case, that process had been followed and that he had visited the site, walked over it and had concluded that modelling it on the basis of being within the forest node was the appropriate path to follow. 21In doing so, he rejected the concept of treating the zoning approach as founding a requirement to use the urban node. He did so, as I understood his evidence, for two reasons. The first is that the physical state of the site as at 2007 was, in his opinion, essentially a forest, as a matter of fact, and that that necessitated the utilisation of the forest node. Second, he indicated that the material that would support use of a zoning approach was one which, as described on p 19 of the manual, should only be applied for larger catchment/developments where there is limited data on the connectivity of the drainage system and detailed site plans are not available and where all stormwater management measures are proposed at the sub-catchment scale. 22As a consequence, he concluded that it was not appropriate to adopt the urban approach, and that the forest approach was the necessary choice on both the facts and the way the model is applied. 23It was his evidence and that of Dr Sharma, also an officer of the Authority employed as Senior Assessment Officer, that the Authority had conducted over a thousand assessments of development applications and had consistently applied the approach that has been adopted by Dr Banens in these proceedings. 24There is, in my view, nothing inherently incorrect in adopting this approach and nothing in the NorBE Tool or the MUSIC manual that leads to an imperative to conclude otherwise. As a consequence, I am satisfied that it is appropriate to adopt the forest node for consideration of this development proposal. 25Having adopted that node, it is then appropriate to consider what is the outcome that is derived by MUSIC as being necessary to achieve NorBE for the site in its post-development position as proposed. 26To do this it is necessary to return to a consideration of the site as it was in 2007. There is a dispute about what might be regarded as the appropriate level of forest cover. That dispute is based on the evidence of factual assessment given by two of the five engineering experts who gave evidence in the proceedings. They are Mr Koen, the Executive Principal, Environmental and Engineering Services of the Council and Mr Williams who is the applicant's consulting engineer and whose firm produced both the original subdivision proposal modelling and the designs for matters that are proposed in this application. 27Each of them produced an aerial photograph drawing a conclusion as to what was the area that is to be regarded as covered by forest. They both relied on similar, but not identical air photos from, I accept, about 2007 and that depict the vegetation on the site. They draw quite significantly different conclusions, different conclusions that are quite critical to the disposition of the proceedings - because, if the position adopted by Mr Koen is to be accepted, the agreed position in the second joint engineering report, which became exhibit G in the proceedings, is that the present application is not capable of achieving NorBE and thus must be refused, whilst, if Mr Williams' calculations are accepted, then the present proposal, subject to some matters about design and the like, is capable of achieving NorBE, that is the Catchment Authority's requirement effectively of NorBE plus 10% and is capable of being granted a development approval. 28Mr Koen's calculations derived a forested area of the order of 80% whilst Mr Williams' calculations derive a forested area of the order of 61%. I am satisfied that adoption of a number that is described as "being in the order of" is appropriate and it does not require a micrometric calculation of the forest cover area. 29Both air photos, although slightly different because that which is used by Mr Williams is taken from a slightly oblique angle whilst that used by Mr Koen is a direct overhead, show that, at the western end of the overall subdivision site, there is an area that is grassed and open and which it is agreed has, in the past, been used as a golf driving range. Mr Koen proposes, in his marked up air photo that is exhibit 14, that the area to be excluded as not been forested follows in rough terms the margins of the cleared area that was formerly the golf driving range. Mr Williams, on the other hand, proposed that the whole of the two pre-subdivision approval allotments, Lots C and B at the western end should be excluded. This required my acceptance that a vegetated area comprising in rough terms 25% of these two allotments should be excluded. There is a submission that I should regard these as having been part of the golf driving range. These areas are not proposed by Mr Williams to be excluded on the basis that they are part of the former house site on the adjacent allotment to the east and I see no basis why I should exclude those vegetated areas from being regarded as forested. 30Second, Mr Williams proposes (but Mr Koen does not accept) that the former house site located in the overall combined parcel of land should be excluded and this comprises an element with a frontage to Waratah Road. In considering this I need have regard to a number of Google street view photographs that were tendered as exhibit O. 31The house that had formerly been erected on this allotment is long since gone. It burnt down at some time in the past, further in the past than in the near past, and what had been its gardens had been permitted to grow unchecked. Vegetation in this part of the site, it can be seen from Mr Williams' air photo, exhibit K, is of modestly different composition to that which appears on much of the remainder of the site. It is clear from a combination of exhibit K and exhibit O that the eastern end of the site has been covered to at least considerable extent by what might be regarded as typical Blue Mountains open eucalypt forest cover, using "forest" in that sense to describe the vegetation pattern type. 32The area surrounding what was the former house site can clearly be seen, from the second of the photographs in exhibit O and partially from the third photograph in exhibit O, to be of quite a distinctly different type comprising a substantial number of exotic plants - some of which may be deciduous and a good number of which are of some species of pine leading to a thick pine needle cover on the ground and an absence of understorey in this area. 33It was Mr Williams' reliance on this and Mr Pickles' submission that some concessions made by Mr Koen that there are gaps in the canopy cover and that dark spots on Mr Koen's air photo arose from shadow rather than from canopy, that I should conclude that this area should not be regarded as being forested. I decline to accept that submission. 34The fact is that an examination of photo 2 of exhibit O and photo 1 of exhibit O show that the former house site has returned to what one might describe as a wild growth area, albeit one of different forest characteristics to the remainder of the site. The fact that it is of imported trees, nonindigenous trees and that it has a pine needle cover on the ground does not, in my view, render it any less than forest. Pine forests are forests. They are a genus of forest. 35To the extent that there might be more than one forest type on this site it does not, in my opinion, constitute some exclusion of the minor forest type from the overall assessment of what might constitute a forest on the site. I therefore reject Mr Williams' conclusions with respect to the house site. 36There then remains a significant dispute between Mr Koen and Mr Williams as to the area in the centre of the eastern portion of the site that should be excluded because it had been at least in part denuded because it has been used as an informal BMX track and may, in Mr Williams' evidence as I understand it, also have been used as a dumping ground for cars, presumably stolen cars or at least abandoned ones. Not only are the areas that each seeks to exclude different in shape as well as in size, but each of the areas proposed to be excluded includes a significant area of vegetation. 37Mr Koen accepted that, although he proposes an exclusion, there is vegetation within it. Mr Williams appears, as I understood his evidence, to be relying primarily on the compacted nature of the ground and therefore an impervious surface within the area that is involved. I am unable to accept Mr Williams' proposition on this point either. It is accepted that some area should be excluded. 38Mr Koen's position, as I understood it, is still a somewhat conservative one given that there is a significant vegetation element in the centre of the area that he is prepared to exclude. Mr Williams, as I understood him, acknowledged the existence of such vegetation but declined to accept that there should be any diminution of the area to be excluded as a consequence of it. 39I am satisfied, as it is appropriate to do with respect to the NorBE outcomes discussed on p 4 of the manual for using MUSIC, that there is some uncertainty in the MUSIC model and that, as a consequence, a conservative approach is appropriate to be taken. In doing so, I therefore conclude overall that the calculations used by Mr Koen are appropriate and that there should be an adoption of about an 80% forest cover for consideration of the site. 40On the information that is contained in exhibit G that necessitates the conclusion that the proposal cannot satisfy, at least in its present form, the NorBE requirements for the proposed development and, as a result, it is necessary for the application to fail. 41Against the event that I might be wrong in reaching that conclusion, it seems to me appropriate that I should then move to consider the two objections pursuant to State Environmental Planning Policy No 1 and undertake the relevant planning assessment of the proposal. As I have earlier indicated, the objections are to compliance with the site coverage requirement and the landscape area requirements contained in the LEP. 42For each of these, Mr Chapman, as earlier indicated, prepared an objection pursuant to State Environmental Planning Policy No 1. Following the approach adopted by the Chief Judge in Wehbe v Pittwater Council [2007] NSWLEC 827 the objections considered what were, in Mr Chapman's opinion, the underlying objectives that are sought to be achieved by the standards. He concluded that the underlying objectives were those that are embodied in the objectives for the zone. 43The site coverage standard is contained in the first of the provisions under Site Coverage and is in the following terms: For any allotments having an area of less than 1,000 square metres the maximum site cover for buildings and buildings ancillary to the main building, excluding water tanks, unenclosed areas of space, decking and swimming pools is 30% or 160 square metres whichever is the greater. 44There is in this case a significant non-compliance between that which is proposed and which would be required. However, Mr Weston, the Executive Principal for Building and Construction Services with the Council, conceded with respect to the site coverage standard, that, if NorBE were to be achieved for the development proposal, then the underlying objective in a Wehbe sense would be achieved. I am content to adopt that approach and not suggest that anything further should be considered. 45As NorBE has not been able to be achieved on my consideration of the earlier questions of how the MUSIC modelling should be applied, the underlying objective of the site coverage standard cannot be achieved. However, I accept that if a NorBE compliant application were to be made on Mr Weston's evidence it would be reasonable to sustain an objection to the compliance with this development standard. 46The second development standard relates to the minimum area for landscaping. It is in the following terms: The minimum area to be retained as soft pervious or landscaped areas, excluding hard surfaces except for water tanks, unenclosed areas of space, decking and swimming pools is 60% of the total allotment area. 47I should observe at this stage that the SEPP 1 objections in each instance are necessary for both Lots 7 and 8. Although the non-compliances are marginally different, the underlying principles remain the same. 48Mr Chapman again took the position that the underlying objective in a Wehbe sense is the objectives of the Living Bushland Conservation zone. Although Mr Chapman embraced all of the objects for the zone, I am satisfied that only objectives (a) (b) and (e) arise for consideration in this context. 49It was Mr Weston's position that two matters, not one, arose for consideration in the analysis of this State Environmental Planning Policy No 1 objection. They were, first, whether NorBE could be achieved and, second, whether the appropriate landscape buffer treatment to the golf course to the north could be achieved compared to that which was sought to be achieved in the 2008 subdivision development consent. 50The conclusions that I have reached with respect to NorBE in the first of the State Environmental Planning Policy No 1 objections is equally applicable to the second and does not need repetition. 51With respect to the vegetated buffer zone, the current proposal is to have the tennis courts act as a lid on what had previously been, if the development is approved, the rainwater garden at the northern end of Lots 7 and 8. 52I accept that the marginal intrusions at either end of the tennis courts into Lots 6 and 9 add nothing relevant to my consideration of this issue, so I confine myself to a consideration of the existing and proposed future landscaping on Lots 7 and 8. 53The construction certificate landscape plan which became part of the development consent by its approval was tendered as exhibit 11. It shows the vegetation proposed to be planted in the rain garden and in particular shows the vegetation that was proposed to be planted in approximately the northern third of the rain garden. The construction certificate plans have been amended to delete the two species of Melaleuca that had originally been proposed to be planted in this portion of the rain garden and required that the plantings be as required by condition 9A of the Development Consent being Consent S/34/2006/A. That set a range of different species to be planted in the northern portion of the rain garden. The relevant element, being the 9th dot point to condition 9A, reads as follows: The northern portion of the rain garden is to incorporate landscaping to achieve a vegetation buffer to the golf course. The landscaping in this portion of the rain garden is to include a mixture of Sassafras, Grey Myrtle, Elaeocarpus holopetalus and Eucalyptus gullichii. 54Those species have not been planted, it is conceded, in that portion of the rain garden, but Melaleucas perhaps have, but I have no evidence on these at this point, being the Melaleucas originally proposed but deleted as part of the construction certificate plans. These have not achieved the desired growth height. 55I am satisfied that, for the purposes of this assessment, I must have regard to that which was supposed to be planted in the rain garden rather than that which is actually there, as I am required to assume that somebody who is given a development consent will have abided by the conditions of that consent. As a consequence, to the extent that Mr Chapman seeks to make some point that the stunted nature of the vegetation in the rain garden leads to a lack of contribution to landscaping, whilst that may be a factually valid observation of the current state of the landscaping, it is not reflective of what should be the state of the landscaping, at least as I understand it, had the original conditions of the plantings required to be planted actually been carried out. 56Had the original planting actually been carried out, there would have been a consistent 10 metre wide, significantly high, vegetated strip along the boundary with the golf course, part of which would have been within the rain garden and part of which would have been to the north of the rain garden - but nonetheless, it would have been a 10 metre wide vegetated strip of some density - if the planting patterns envisaged for the northern portion of the rain garden had been carried out as required. 57That which is proposed in the present landscaping plan, which became exhibit B, is merely a 4 metre wide strip which would comprise two-fifths of the plantings proposed for the remainder of the landscaped areas on Lots 6, 7, 8 and 9. 58It is clear from consideration of the inset plans on the foot of exhibit B that that which is proposed in the 4 metre element is merely two-fifths of that which is depicted for the 10 metre element blown up to a slightly larger scale, that is from a 1:100 to a 1:50 scale. There is no variation that I am able to discern, using a magnifying glass to examine these inserts, between the planting elements proposed for each of these portions - thus the landscaping effect from the golf course will differ along the northern side of the proposed tennis courts. 59Mr Pickles suggests to me that I should have regard to the existing landscaping of the golf course in the vicinity of the existing dam. Borrowed landscaping is not an appropriate proposition to accept. There is no control over borrowed landscaping. There is no guarantee that borrowed landscaping can be required to be maintained into the future. I am therefore not satisfied, on a planning basis, that the proposed landscaping to the north of the proposed tennis courts is adequate as a vegetated buffer to the golf course and that as a consequence it does not satisfy the elements of objectives (b) and (e) of the objectives for the zone. 60It is also appropriate to note, in my view, that the landscaping does not only provide a buffer to the golf course and the screening of the built form proposed for the site, but also provides a significant element of the amenity to a residence of the site. 61Mr Pickles put the proposition to me that I should have regard to what I understood him to be saying is the social value that is provided by the owners of Lots 7 and 8 by accepting the burden of the rain garden in order to provide what amounts to a communal storm water treatment for the other allotments within the subdivision. 62I accept that Lots 7 and 8 do have a burden in that sense. I do not accept that is something that should be taken into account in providing them with some form of planning dispensation to compliance with objectives the zone, or, more particularly, development standards required under the LEP. 63The subdivision required, in its original design form, compliance with NorBE as required by the State Environmental Planning Policy for Sydney's Drinking Water Catchments. How the applicant chose to design the subdivision to achieve that was a matter for the applicant at the time. The design advanced and accepted by the Sydney Catchment Authority was one that incorporated a proper functioning rain garden on Lots 7 and 8. Functioning, I note in passing, that is not achieved by the way it has, in fact, been constructed. This was necessary to achieve NorBE. Achieving NorBE plus 10%, I accept, was adopted as being met by the Catchment Authority and by the Council in approving the subdivision. The developer chose to do it in the fashion that has happened. The way that impacts on the value of the various allotments is a matter for the market. There is no social or ethical or proper planning basis, in my view, to accept the submission that as part of an overall orderly economic development of land consistent with the objectives of the Environmental Planning and Assessment Act 1979 in s 5 of the Act necessitates that those allotments that have accepted the rain garden should receive some dispensation for it. It is an appropriate part of the overall assessment of and necessity for storm water controls to achieve NorBE plus 10%, no more, no less. 64As a consequence, on a planning basis of compliance with the underlying objective of the landscaping development standard, setting aside the question of compliance with NorBE, I cannot be satisfied that that objection should be sustained and that, on that planning basis alone, quite separately to the NorBE basis, the application should be refused. 65I now turn to the question of what orders should be required pursuant to s 97B of the Environmental Planning and Assessment Act, there having been two sets of amendments made to the plans during the course of the proceedings. The first of those amendments, that is between the development application which forms part of exhibit A, the Class 1 appeal papers and the plans, and exhibit C, are conceded by Mr Pickles not to be minor and requiring an order pursuant to s 97B(2) of the Act. However, he submits to me that the second amendments, that is those that take the proposal in its transition from exhibit C tendered on 2 August at Katoomba Courthouse to exhibit H tendered on 27 August in Court, do not warrant being considered as minor and, as a consequence, no s 97B(2) order should be required. 66The work that was necessary to undertake an assessment of the exhibit C plans was undertaken by the five engineering experts and resulted in the preparation of an extensive expert joint report that became exhibit 4 in the proceedings. The result of that conferencing led to the necessity for the applicant to go to the plans that became exhibit H. Exhibit H was the subject of joint conferencing by the experts and resulted in a further extensive joint report that became exhibit G in the proceedings. The scope of the joint report makes it clear that significant work was involved in the assessment of the second amended plans, exhibit H, by the experts in considering those plans. 67There are distinctly different flavours of issues involved by the exhibit H plans. The work that was done to prepare exhibit 4 is not merely replicated by exhibit G but involves, it seems to me, significant intellectual effort by those participating even though the broad issues themselves may have remained unchanged. In addition to the matters that were dealt with by the Chief Judge in Groeneveld v Wollongong City Council [2009] NSWLEC 149 and by Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45 the extent of the work of the experts to respond to the amendment is, in my view, a relevant consideration in determining whether those amendments were minor or not. 68I am satisfied, as a consequence of the nature of the work that it was necessary for the preparation of exhibit G and a contemplation of exhibit G in the context of exhibit 4, that the second amendments should not be regarded as minor. It follows therefore that the orders of the Court are as follows: (1)Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicants are to pay the costs of the Council thrown away as a result of each of the two amendments to the development application, with those costs to be as agreed or assessed. (2)The appeal is dismissed. (3)Development application X/171/2012 seeking consent for the construction of two tennis courts on top of the existing stormwater pond and associated stormwater control works on Lots 6, 7, 8, 9, 10, 12 and 14 in Deposited Plan 1135373 is determined by the refusal of development consent. (4)The exhibits, other than Exhibits A and 1, are returned. Tim Moore Senior Commissioner 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: 20 September 2013