Land and Environment Court of New South Wales CITATION : Cooper v Wollondilly Shire Council [2004] NSWLEC 145 APPLICANT Max Cooper PARTIES : RESPONDENT Wollondilly Shire Council FILE NUMBER(S) : 11332 of 2003 CORAM: Talbot J - Murrell C KEY ISSUES: Development Application :- refusal of caravan park - existing noise environment not suitable - SIS required where experts disagree on likely significant impact Environmental Planning and Assessment Act 1979 s 5A, s 78A(8)(b) Protection of the Environment Operations Act 1997 Pt 3 Sch 1 Threatened Species Conservation Act 1995 LEGISLATION CITED: Development Control Plan No. 36 - Development in Rural Areas Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment Local Government (Caravan Park, Camping Grounds and Moveable Dwellings) Regulation 1995 State Environmental Planning Policy No. 21 - Caravan Parks Wollondilly Local Environmental Plan 1991 CASES CITED: Ingham Enterprises Pty Ltd v Kira Holdings (1996) 90 LGERA 68 DATES OF HEARING: 05/04/2004, 06/04/2004 DATE OF JUDGMENT: 04/07/2004 APPLICANT Mr A E Galasso (Barrister) SOLICITORS Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT Mr G B Newport (Barrister) SOLICITORS Marsdens Law Group JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11332 of 2003 Talbot J 7 April 2004 Max Cooper Applicant v Wollondilly Shire Council Respondent Judgment Introduction 1 The concept of the applicant's proposal to carry out development on land at the intersection of Illawarra and Toggerai Streets, Appin comprising lot 1 DP 999948 and lot 80 DP 752012 is to remove a portion of vegetation, including trees to construct a short stay 80 site caravan park with circular road system, amenities block, manager's residence, garage and landscaping. There are to be two vehicle entries off Toggerai and Illawarra Streets. 2 The land abuts Appin Colliery across a road along the southern boundary. The land adjacent on the opposite side of Illawarra Street is zoned residential although actual development has only occurred along the Toggerai Street frontage at this time. East of the land is George Street which provides access for trucks to and from the colliery. 3 The subject land is in the Rural 1(a1) zone pursuant to Wollondilly Local Environmental Plan 1991. Tourist facilities (including caravan parks) are permissible within the zone. The site has an area of 4.024 hectares and is predominantly rectangular in shape. 4 The pit top facilities for Appin Colliery are located immediately south of the subject land. 5 State Environmental Planning Policy No. 21 – Caravan Parks, Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment Local Government (Caravan Park, Camping Grounds and Moveable Dwellings) Regulation 1995 and Development Control Plan No. 36 – Development in Rural Areas all apply to the land. Resolved issues 6 Following conferencing pursuant to the Expert Witness Practice Direction ("EWPD") the applicant's bush fire consultant and a representative of the NSW Rural Fire Service have adopted agreed measures that resolve fire safety issues. Basically, sites 67 to 80 will not be included in the proposal until such time as the vegetation on the western side of Illawarra Road is managed or cleared. Conditions of approval can be imposed dealing with adequate asset protection and access for fire suppression and emergency services. 7 The respective environmental engineers have resolved their differences relating to disposal and management of wastewater and a joint statement prepared pursuant to the EWPD recommends conditions that they agree will result in a satisfactory arrangement. 8 The town planners effectively defer to others with more particular expertise in respect of the specific issues raised by the respondent. Noise impact 9 As already mentioned the site is in close proximity to the pit top facilities for Appin Colliery. 10 Wollondilly Shire Council ("the council") relies upon the expert evidence of Acoustical Engineer, Stephen Gauld, whereas the applicant has not engaged an expert in this field. 11 Mr Gauld assessed noise emissions from the adjacent Appin Colliery in accordance with the Environment Protection Authority ("EPA") Industrial Noise Policy environmental noise guidelines and EPA Environmental Criteria for Road Traffic Noise. 12 In his opinion, the applicant's proposal does not make adequate provision for the exclusion of industrial noise from the colliery. There is no contradiction to this evidence and Mr Gauld was not persuaded to change his fundamental view in any significant relevant respect during cross-examination. 13 A company controlled by BHP Billiton operates the colliery in accordance with appropriate consents. The latest consent is the grant of development consent that effectively authorises an increase in the transport of unwashed coal from the site to four million tonnes per annum. The latest development application was assessed for noise impact by Renzo Tonin and Associates. Although the subject application for development consent in respect of the caravan park had been lodged with the council prior to the most recent grant of development consent for the colliery in September 2003, it appears that the prospect of impact of noise generated by traffic noise of trucks on future residents of the subject site was not addressed. 14 Mr Gauld predicted that the level of intrusive noise from the colliery will be 52 Leq (15min) dBA against an acceptable noise level of 40 dBA. The maximum noise is assessed as 68 L1 (15 min) dBA whereas the acceptable noise level is 60 dBA. Traffic noise assessed as Leq (1 hour) dBA was predicted to be within acceptable noise levels. 15 Mr Gauld concludes that his measurements and computations show that the site is not suitable for the proposed development as the noise from the colliery industrial area will be above the allowable noise limits set out in the EPA Industrial Noise Policy. He says that without suitable noise controls noise intrusion from the colliery activities will cause "offensive noise" at the proposed development in the sense contemplated by the Protection of the Environment Operations Act 1997 ("the PEO Act"). Thereby making it unsuitable for use as a caravan park. 16 Mr Galasso, who appears on behalf of the applicant, seeks to persuade the Court that because the future residents will be short stay only the impact should not be assessed in the same way as permanent residential dwellings on the basis that the occupiers of the site from time to time will be transient. It is too simplistic to regard all potential residents as persons who propose to stay only over night or a weekend when, pursuant to the definitions in the legislation applicable to caravan parks, short stay is recognised as up to 150 days. Mr Galasso also argues that as the likely residents will enter the environment with an understanding of the noise potential they will accept it. The Court has no way of knowing whether this suggestion is supportable and rejects it. 17 Finally, Mr Galasso asserts that as there is no specific assimilation of caravan parks into EPA residential guidelines or criteria it can be inferred that it is not intended for caravan parks to be assessed as residential use. To the contrary, the absence of any such reference or criteria leaves the Court with no real option except to adopt the acceptable limits adopted by the EPA and embraced by Mr Gauld in regard to intrusive noise and sleep arousal for dwelling houses. 18 It is not appropriate as a matter of principle to foreshadow the imposition of controls on the approved activities at the colliery in order to accommodate the amenity of the users of the caravan park. The mine has been approved and established without contemplating what is effectively a residential use of the subject land. There are many instances of residential type development encroaching into the environs of existing industrial uses with detrimental consequences to the operator of the industrial use. Typical of this consequence is the circumstance of Illawarra Coke Co Pty Ltd as demonstrated by the outcome of criminal proceedings taken against it by the EPA pursuant to the PEO Act reported in 2002 (118 LEGERA 451) where the conflict of land use had arisen by residential development spreading into the pre-existing industrial environment occupied by the company. Other examples abound in the rural urban interface on the outskirts of Sydney, particularly in respect of mushroom growing and poultry producer uses (see Ingham Enterprises Pty Ltd v Kira Holdings (1996) 90 LGERA 68). The decision of the Court of Appeal in Kira demonstrates that it is not the province of the consent authority nor is it appropriate to seek to have an existing user ameliorate the impacts of pre-existing development rather those impacts should be addressed by imposition of conditions or constraints on the proposed development or refusal of consent. 19 The approval of the caravan park will have the effect of introducing an inherently conflicting residential land use which almost inevitably will lead to confrontation, complaint and possible attempts to constrain the use of the colliery site beyond the controls imposed by existing approved conditions. 20 For that reason alone the development application must be determined by refusal of consent. The permissible uses in the zone are not limited to residential type development and it is not therefore a situation where the refusal of the development application will necessarily have the effect of sterilising the future use of the land. Appin Road 21 There is evidence of foreshadowed Roads and Traffic Authority proposal to re-route part of Appin Road through the subject site. The only step taken by the council in this respect to date is a resolution on 16 February 2004 to prepare a draft LEP to rezone the bypass route. Nothing further has been done and it is apparent from council records that the proposal for the route has not been developed to a point where it is a relevant consideration for present purposes. Impact on Shale Sandstone Transitional Forest 22 Shale Sandstone Transitional Forest ("SSTF") is an endangered ecological forest community that occurs on the margins of the Cumberland Plain in the Sydney Basin Bio-region. It is listed in Pt 3 of Sch 1 to the Threatened Species Conservation Act 1995. The structure of the community is forest or woodland. 23 The final determination by the New South Wales Scientific Committee states, inter alia, as follows:- 11. Many occurrences of SSTF are as linear stands, which may be as narrow as 20 metres. The small size and scattered distribution of the remnant stands of the community makes provision of a comprehensive map of occurrences impractical. … 14. A large proportion of the area where SSTF occurred in the past has been cleared for agriculture and urban development. Remnants are small and scattered. Identified threats include: clearing, physical damage from recreational activities, rubbish dumping, grazing, mowing and weed invasion. 15. In view of the small size of exiting remnants the threat of further clearing and other threatening processes, the Scientific Committee is of the opinion that SSTF in the Sydney Basin Bioregion is likely to become extinct in nature unless the circumstances and factors threatening its survival cease to operate and that listing as an endangered ecological community is warranted. 24 The subject site is on the eastern limit of the distribution of SSTF. 25 The applicant's consultant, Dr Mills, estimated that about 1.2 hectares (30 per cent of the site) is SSTF whereas the council's expert Mr Lembit estimates that the area is only 0.5 hectares, although they differ in respect of the condition of the SSTF. Dr Mills opines that the SSTF is not in good natural condition whereas Mr Lembit concludes that the condition of the SSTF is good and that it should have a high recovery potential given sympathetic management. 26 If the assessment by Mr Lembit is correct then a Species Impact Statement ("SIS") may be required pursuant to s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") because the vegetation will be effectively removed or modified to the extent that the integrity of the community on the site will not survive. 27 The fact that the SSTF on the site is small and on the margin of the areas of occurrence does not diminish its significance and is not inconsistent with the description in the Scientific Committee determination. 28 Dr Mills considers the potential link to other communities to be tenuous. On the other hand, Mr Lembit says that the development involves the removal of an area of SSTF which is proximal to other areas of SSTF and would result in an adverse effect on gene flow and the ability to sustain viable populations of the plants which comprise SSTF in the vicinity. 29 On the balance of probabilities, but without the benefit of oral evidence or cross-examination, the Court tends to favour the view expressed by Mr Lembit that there is likely to be a significant effect on the SSTF community in the circumstances of the case. The purpose of requiring an SIS would be to resolve the conflict between the respective experts neither of whom has been discredited or shown to have fallen into error. Until the disagreement is resolved the Court, acting as the consent authority within the meaning of s 5A of the EP&A Act is entitled to conclude that there is a real chance that there is to be a significant effect on the threatened species. It is appropriate to err on the side of caution in making the initial determination dictated by s 5A and s 78A(8)(b) as to whether an SIS is required. This view is reinforced by the agreement between the experts that "All vegetation on the site will effectively be removed or modified so that the integrity of the SSTF as a community will not survive". Conclusion 30 The impact of the noise of the colliery activities drives the Court to determine the application for development consent by refusal of consent. Moreover, following the precautionary principle, in the absence of any countervailing evidence the Court concludes that it is appropriate for an SIS to accompany the development application. Accordingly, the application cannot proceed and must be refused. Orders 31 The Court makes the following formal orders:- (1) Appeal dismissed. (2) Application for development consent to remove vegetation on lot 1 DP 999948 and lot 80 DP 752012 and construct a caravan park on the land is determined by refusal of consent. (3) The exhibits may be returned. 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.