Acquaro v Great Lakes Council [2005] NSWLEC 582

Land and Environment Court of New South Wales

CITATION : Acquaro v Great Lakes Council [2005] NSWLEC 582

APPLICANT Raffaele Acquaro

PARTIES : RESPONDENT Great Lakes Council

FILE NUMBER(S) : 10298 of 2005

CORAM: Hoffman C

KEY ISSUES: Appeal :- Bushfire requirements - access - public interest - zoning - endangered species - inaccuracy of description of agricultural processes involved - poor documentation - impacts unable to be properly assessed

Local Government Act 1919 Rural Fires Act 1997 LEGISLATION CITED: Great Lakes Local Environmental Plan 1996 Local Government Act 1906 Environmental Planning and Assessment Act 1979

DATES OF HEARING: 01/08/2005, 23/09/2005 EX TEMPORE JUDGMENT DATE : 09/23/2005

APPLICANT Mr R Acquaro, self represented

LEGAL REPRESENTATIVES: RESPONDENT Mr Rees, solicitor

JUDGMENT: THE LAND AND environment court of new south wales

Hoffman C

23 September 2005

10298 of 2005 Raffaele Acquaro v Great Lakes Council

JUDGMENT

1 This is a class 1 appeal No. 10298 of 2005 between Raffaele Acquaro and Great Lakes Council in regard to the refusal of a mushroom farm at Lot 1376 DP12277 Eastslope Way, North Arm Cove, Port Stephens. 2 The site is an allotment of 777 sq m area with frontage of 18.288 m to Eastslope Way and 42.6 m side frontage to Beechwood Crescent. The latter is on the north side of the lot. Both accesses are unmade roads with a dirt track within the roadway. The site is a relatively level one with about 2.5 m fall from Eastslope Way to the rear of the lot. 3 The whole area is open bushland with mature trees and the site has several mature trees as does its neighbours and the roadways, with grasslands between the trees. 4 The proposal is to put a steel framed and sheeted rural shed on the front part of the site with a 5 m setback to Eastslope Way and Beechwood Crescent and 3 m setback to the southern side boundary which adjoins another lot of similar size to the proposal, also owned by the applicant. 5 The applicant also owns the next two similar sized allotments up to the corner of Eastslope Way and Gloucester Street. Located on two of those lots closest to Gloucester Street is a public library building that the applicant owns and leases to the Great Lakes Council. Across Gloucester Street is the bushfire brigade building. 6 The subject site and the land south of it to Gloucester Street is all zoned Rural 1(a) under the Great Lakes Council Local Environmental Plan 1996. The same zone applied to extensive areas of bushland north and west of the site. South of Gloucester Street lots fronting Eastslope Way and eastwards of that to the waterfront are zoned Village 2. West of the lots fronting Eastslope Way in the village, the bushland is all zoned Rural 1(a). 7 In the village there are houses on many lots although some are vacant. The council recently approved a café and shop near the corner of Eastslope Way and Gloucester Street in the Village zone about 80 m from the site. It has a house attached. The nearest detached houses are just past the shop from the site. The applicant measured the distance at 120 m and this was not contested. 8 Maps of the area were tendered and revealed the whole locality between the highway a couple of kilometres north down to the waterfront is subdivided up into a township, most of it zoned Rural 1(a), with only the waterfront strip previously referred to along North Arm Cove and around to Heroes Bay and Lobito Point being zoned Village 2. Apparently it is what is called a paper subdivision designed by Walter Burley Griffin of Canberra fame. 9 The subdivision was registered in 1920, just after the Local Government Act of 1919. The Court was told therefore the apparent roads on the map were not public roads except for the Gloucester Road that led to the highway and the streets in the village. The non-public roads, the Court was told, are owned by a defunct company that used to have shareholders who are the owners of the 3000 lots zoned Rural 1(a). Apparently the many owners were intended to pay the defunct company an annual fee for the maintenance and use of the non-public roads. 10 Apparently council had never granted consent for work to be done on the roads, and development consent was required, thus most remained as bushland and only some had become dirt roads due to usage. 11 The current zoning requires a minimum holding of 40 ha for consent to a dwelling. Other rural uses permissible with consent did not need the minimum area however they were subject to a merit assessment and required development consent. 12 Returning to the proposal, as well as the shed the applicant showed a 4 m wide access driveway to the industrial sized sliding door of the shed. The enclosed part of the shed is 6.6 m by 8.7 m. On the north side of the shed is an open area 3.4 m by 8.7 m covered by the roof and having a concrete slab floor. The open part is for the storage of farm equipment. 13 The applicant also intended to store spent mushroom compost in plastic bags on the south side of the shed within the 3 m side setback. The Court was told the compost can only be used once per batch of mushrooms and is then sold off as garden fertiliser so the stored plastic bags would rotate as some were sold and new ones added. 14 Within the front setback to Eastslope Way is to be a Rural Fire Service water tank. Behind the shed are to be a clean-water storage tank with two others tanks involved in the mushroom farming process. A pump-out septic sewerage disposal system is proposed. A market garden area was originally proposed on the rear half of the lot but that had been deleted by the time of the hearing.