Land and Environment Court of New South Wales CITATION : Nicholls and Billyard Pty Ltd v Port Stephens Council [2000] NSWLEC 221 APPLICANT: Nicholls and Billyard Pty Ltd PARTIES : RESPONDENT: Port Stephens Council FILE NUMBER(S) : 10154 of 2000 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Class 1 consent orders in participation by local resident objector - Appropriate course to make consent orders granting development consent subject to conditions (enhanced to satisfy objector's concerns). LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: DATES OF HEARING: 20 July 2000 EX TEMPORE 07/20/2000 JUDGMENT DATE : APPLICANT: Mr J Kildea, Barrister SOLICITORS LEGAL REPRESENTATIVES: RESPONDENT: Mr D Gray, Solicitor SOLICITORS Sparke Helmore JUDGMENT: IN THE LAND AND Matter No . 10154 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 20 July 2000 NICHOLLS AND BILLYARD PTY LIMITED Applicant v PORT STEPHENS COUNCIL Respondent JUDGMENT Bignold J: 1. This is an appeal pursuant to section 97 of the Environmental Planning and Assessment Act 1979 against the decision of the Council refusing a subdivision proposal on land known as lot 111 Deposited Plan 592368 situate at 285 Gan Gan Road, Anna Bay. 2. The Council's determination as notified to the Applicant on 23 December 1999 refusing development consent advanced seven separate reasons for the Council's decision. I will not stay to recite each and every one of the reasons other than to note that they addressed such matters as environmental sensitivity of the land, especially by virtue of the likely presence of koala, wallum froglet and powerful owl fauna. The land contained a large proportion of acid sulfate soils. The land was low lying and was likely to be surrounded by slow flowing water during prolonged rainfall and the downstream landowners, which had formed themselves into a union called the Anna Bay Drainage Union, were opposed to receiving additional urban runoff from the proposed development. 3. The Applicant appealed to this Court on 24 February this year against the Council's decision. In May this year, the Applicant lodged with the Council an amended plan showing a different subdivision proposal from that originally proposed. A copy of the amended plan has been received in evidence as Exhibit 1. It proposes a reduced number of lots, namely 48 residential lots instead of the original proposal for 61 lots. More importantly, the amended proposal for the reduced number of lots eliminated entirely the subdivision of a large section of the development site located to the south of a major drainage channel intersecting the land in an east-west direction. It was this land which contains the most extensive stand of vegetation and is prime area of habitat for the three aforementioned variety of fauna. It also was the most waterborne section of the land. 4. As a result of the Council's consideration of the amended plan the professional staff of the Council formed the view that the objections raised by the Council in its determination on 23 December 1999 had been overcome and that the amended subdivision was considered to be satisfactory. This decision, which was taken at Council servant level, involving consultation with four Councillors representing the East Ward in which the subject land is situate. The decision, taken at that level, did not involve a reconsideration by the full Council as had occurred with the original determination on 23 December 1999. 5. Following that decision, that is at senior servant level after consultation with the four Ward Councillors, the Council's Solicitor and staff engaged in negotiations with the Applicant which resulted in an agreement being entered into between the parties that the present appeal to the Court be determined on the basis of consent orders which would grant development consent to the amended subdivision proposal subject to comprehensive conditions of consent which the parties had collectively put together. 6. Because the decision latterly taken represented a significant departure from the original concept and the Council's original decision at its meeting on 23 December 1999, the Council's senior staff took appropriate action to notify residents who had objected to the proposal of the changed circumstances, including advice that the matter would be before the Court today for consideration of the consent orders. The advice to the residents included a copy of the amended subdivision plan together with a copy of the draft consent orders which the parties had prepared. Some 22 persons were notified (some on 11 July and some on the 18 July). 7. In response to such notification, Mr Neal, a resident in the existing residential subdivision in the locality, has appeared and has been given the opportunity to address the Court on concerns engendered by the proposed consent orders in his mind. Mr Neal, who lives in 4 Casuarina Close, One Mile Beach, has addressed the Court with the concurrence of the parties' legal representatives in a helpful manner. He indicated that he was representing the community of the existing One Mile Beach Estate and it appears that he has been principally proactive in the local community in opposing the proposed development because of concerns that he and fellow residents have in relation to it. 8. In his address to the Court, he has in particular raised three subjects of concern, principally relating to the drainage question. By that I mean the concern of residents in the existing One Mile Beach Estate to the receipt of flood waters onto their properties in times of flood and heavy rain and their concern that the proposed development would inevitably exacerbate that condition. 9. The second matter of concern addresses the condition of the land containing acid sulfate soils and the third matter raised concerns the history of the application before the Council and, more particularly, the perception by Mr Neal and fellow residents of the Council's volte face, particularly in the light of their decision in December 1999 to reject the proposal at the full Council meeting. 10. I interpose in respect of the Council's original determination that the Council's professional servants, had recommended approval subject to the imposition of conditions but that the Council, in determining to reject the application, rejected the professional staff's advice. Mr Neal informed me, and I accept, that the Council's decision was preceded by a full Council inspection of the subject land and its environs, and I have little doubt that the Council's original decision was largely reflective of the Council's response to the objections raised by the existing community and by the Anna Bay Drainage Union in particular, as is reflected by the reasons for the Council's original decision. 11. The parties, through their legal representatives, have been very accommodating of Mr Neal's participation in today's proceedings. At the outset I expressed concern that events have happened with some haste in recent times and in consequence that the local objectors may not have received adequate notice of the proposed consent orders. Mr Neal has come down from Port Stephens today and although given the opportunity by me to return on another occasion he has expressed a preference that the Court receive his statement today in the proceedings so that he does not have to be inconvenienced in returning on another day. I respect that decision and am also confident, in the light of it, that although the notice to some of the objectors has been very belated, that he has competently represented their interests today and any qualms that I originally entertained about the lack of notice to objectors has, in the circumstances, been overcome. Mr Neal has made a significant contribution on behalf of himself and his fellow residents and I have been assisted by it. Additionally, I should note the courteous and considerate attention that he has received from the parties' legal representatives here in Court today. 12. The two matters that Mr Neal has directed particular attention to in relation to aspects of the development (namely the off-site drainage question and the on-site acid sulfate soils question) in my judgment, have been considerably and satisfactorily resolved by the parties' mutual decision to adopt supplementary conditions of development consent which afford appreciable measures of protection against the risks apprehended by Mr Neal from materialising in the course of carrying out this subdivision and the consequent development of the lots. 13. Firstly, on the question of drainage, the parties drew my attention to the evidence filed concerning the flood study and site drainage strategy undertaken by consulting civil engineers, J Wyndham Prince Pty Ltd and my attention was drawn to the findings of that study and, in particular, to the findings recorded at p 4 which contain the Study's executive summary. That executive summary indicates that the flood study and site drainage strategy has found that the development of the site will result in a small increase in flow rates, 4 per cent, at the site's western boundary. This increase is associated with the loss of flood plain storage within the site and results in a corresponding increase in flood levels at the site's western boundary of .01 metre. 14. Further findings reported in the executive summary are: the proposed site fill does not impact on the active floodway on the main drain. There is no direct increase in flood levels associated with the filling on this development. No local drainage flow or runoff problems are created by the proposed development. 15. Mr Neal, who does not profess hydrological or hydraulic engineering knowledge or skills but is a local resident who lives with a flood environment, not surprisingly expresses some disbelief that the proposed development could be so innocent of flood consequences for neighbouring sites. This state of affairs led to the suggestion that the opinion of the civil engineer contained in report Exhibit E ought be translated into a guaranteed condition. The parties readily accepted the suggestion and the drainage conditions contained in the proposed conditions of consent have been supplemented by condition 13A which states: No additional flooding shall be caused to any land in the locality of the subject land as a result of the carrying out of this subdivision or any resulting buildings on the subject land. 16. I point out that that condition significantly allays the layman's concerns aptly expressed by Mr Neal and I also point out that the conditions of development consent in conditions 4 to 13 contain other stipulations dealing with drainage issues arising from the proposed development, including the establishment of wetland basins. I refer here to Condition 12. By including the guarantee contained in Condition 13A, both the developer and the Council will be on notice of the performance standards required of this development and no doubt when engineering details are submitted to the Council, as contemplated by Condition 7 for the issue of a construction certificate for works, the proposal will be vetted by the Council and the developer in the knowledge of the existence of that guaranteed condition. In those circumstances, I am satisfied that the conditions of consent dealing with drainage adequately address the concerns expressed by Mr Neal. 17. The other matter raised by Mr Neal concerning the development is the question of acid sulfate soils. Again the conditions of development consent numbered 20, 21 and 22 deal with that matter but again the parties have very reasonably responded to a suggestion that fell from the Bench that the recommendations contained in the Douglas Partners' study which included an acid sulfate soil assessment (being Exhibit F in the proceedings) should be adopted by way of supplementation. To that end, Condition 20 has been amended to reflect the consultant's recommendation by the addition of a further requirement which states: Prior to any site development which involves excavation of soil, an acid sulfate management plan in the form reasonably required by the Council shall be prepared and submitted to the Council. 18. In those circumstances, I am satisfied that the conditions of development consent numbered 20, 21 and 22 again adequately resolve the concern expressed by Mr Neal in his address to the Court. 19. The final matter raised in Mr Neal's statement to the Court concerns no physical aspect of the development, but instead the process that I have earlier described which brings the parties to the Court today seeking the Court's approval of consent orders. I say at once that Mr Neal's perception of what has happened in the case is perfectly understandable. As a resident and rate payer it is obvious that he would be very alive to the change in attitude evinced in this case on the part of the Council and, no doubt, as a resident whose objections so obviously affected the Council's original determination to refuse development consent to the proposal, he understandably would be disappointed with the final outcome. However, the evidence does satisfy me that the amended plan significantly overcomes the objections that had been raised by the Council to the original proposal in so far as the original proposal contemplated development of the land south of the main drainage channel. 20. The amended plan preserves in specie that land unaffected by the development and for the benefit of protected fauna and flora and I can understand how it is that the Council has adopted a changed attitude and assessment of the amended proposal as is reflected in the evidence and affidavit of Mr Mossage, a town planner who has been involved in this case in the long period of time that it has been processed through the Council and there is no reason for me not to accept his professional opinion that the amended plan satisfies the concerns and objections originally raised by the Council to that aspect of the proposal which contemplated development on the land south of the main drainage channel. 21. I also accept his opinion that the objection under State Environmental Planning Policy 1 (being Exhibit G in these proceedings) is well founded and ought be upheld. That concerns ten lots of the proposed 48 lots situate on the highest ground near Gan Gan Road which each contain an area less than the 4,000 m 2 required by Port Stephens Local Environmental Plan, cl 38. That clause, which specifically sanctions, subject to Council consent, the subdivision of the proposed land and other land not affected by the proposal, postulates the requirement that each lot have a minimum area of 4,000 m2 of which no less than half should be flood free. Mr Mossage has informed the Court that the ten lots, each containing an area a little more than 3,000 m2, is each wholly free of flooding so that the objective of the development standard, particularly in securing an amount of flood free land for each development site, is more than adequately met by the proposal. For that reason, I accept his opinion that the objection is well founded. 22. I am satisfied by the evidence that the Council's decision in the present proceedings to settle the case by entering into consent orders is unexceptional. It may be that Mr Neal and fellow residents might have expected the matter to have been returned to the full Council for at least ratification. That is a matter ultimately for the internal management and administration of the Council and it is not for me to say what ought to have happened in the case other than to say nothing untoward, in my opinion, has been shown in the circumstances leading to the Council's decision to enter into consent negotiations which have ultimately culminated in the consent proposal now put to the Court. 23. It follows, therefore, that each and every one of the matters addressed to the Court in Mr Neal's statement have, in my judgment, been adequately dealt with and I am further satisfied, for the reasons I have given, that it is appropriate for the Court to consider the matter as a consent order case. In that respect, I am entirely satisfied by the expert evidence that has been filed, by Mr Mossage's evidence today including his affidavit and by the terms of the conditions of consent, particularly as supplemented by the two matters that I have earlier referred to dealing with off-site drainage consequences and acid sulfate soil treatment, that the conditions appropriately address the amended proposal. 24. For all of those reasons, I am of the opinion that the consent orders as sought by the Council ought be adopted by the Court and accordingly by consent I make the orders set forth in the short minutes prepared by the parties, signed by their legal representatives. The exhibits may be returned to the parties except for Exhibit 1, (being the amended plan) which shall remain with the Court papers. 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.