Land and Environment Court of New South Wales CITATION : GWH Buildings Pty Limited v Great Lakes City Council [2004] NSWLEC 557 APPLICANT: GWH Buildings Pty Limited PARTIES : ACN 076 858 985 RESPONDENT: Great Lakes City Council FILE NUMBER(S) : 10411 of 2004 CORAM: Lloyd J Development Application :- highway service centre - economic and social impacts - public interest KEY ISSUES: Development application: - threatened species - species impact statement is required Evidence:- expert evidence - court appointed experts - adoption of experts' reports Environmental Planning and Assessment Act 1979 s 5A, s 97 and s 117 LEGISLATION CITED: Environment Protection and Biodiversity Conservation Act 1999 (Cth) Threatened Species Conservation Act 1995 (NSW) Kentucky Fried Chicken Pty Ltd v Gantidis (1978) 140 CLR 675; CASES CITED: Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2002) 122 LGERA 288 DATES OF HEARING: 09/08/2004; 09/08/2004 and 11/08/2004 EX TEMPORE 08/11/2004 JUDGMENT DATE : APPLICANT: Mr J M Atkin (barrister) SOLICITORS: Harris Wheeler LEGAL REPRESENTATIVES: RESPONDENT: Mr T F Robertson SC and Ms J M Jagot (barrister) SOLICITORS: Peter Rees JUDGMENT: - 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Wednesday, 11 August 2004 LEC No. 10411 of 2004 GWH BUILDING PTY LIMITED V GREAT LAKES COUNCIL [2004] NSWLEC 557 EX TEMPORE JUDGMENT 1 Lloyd J: This is an appeal against the deemed refusal of a development application for a highway service centre on land known as lot 201 in deposited plan 1042537, on the corner of Pacific Highway and The Branch Lane, some three and a half kilometres north of Karuah. The site of the proposed development occupies an area of some 2.25 hectares and is also adjacent to the Karuah bypass which is presently under construction and which, I understand, will be opened within the next month or so. 2 The subject land is zoned 1(a) Rural under the Great Lakes Local Environmental Plan 1996, in which zone the proposed development is permissible with consent. It is proposed that the highway service centre comprise a fuel outlet for petrol and a fuel outlet for diesel. It will contain two restaurants and, I understand, a convenience store in conjunction with the service station element of the development. There will be provision for 20 car parking spaces adjacent to the service station. Nine truck parking spaces will be provided north of the service station and a further 68 parking spaces with four each for coach, caravan and trailer or disabled spaces included in that number. Part of the site will be filled and the fill retained on the land. A nutrient control basin and swale are proposed to capture the first ten millimetres of rainfall off the site. It is proposed that there be an on site sewerage system with the effluent to be removed on a daily basis. 3 The development was the subject of a number of objections received from residents of both Karuah and Bulahdelah, including amongst those the Karuah Progress Association and the Bulahdelah Chamber of Commerce. The Court has heard evidence from three Court appointed experts, namely Mr Neil Ingham on town planning matters, Dr Bruno Parolin on economic impacts and Dr Anne Marie Clements on the effect of the development on a threatened species of plant which exists on the land and to which I will come in due course. 4 The question for determination is whether the Court should adopt the reports of the Court experts. The situation, as I see it, is not dissimilar to that where a court might refer particular questions to a referee for investigation and report. When the report is then produced, the question is whether or not the court should adopt the report of the referee. Similarly here, the question is whether or not the Court should adopt the reports of the Court experts. I should note that each of the Court experts has given evidence, has been examined and cross-examined. In addition to the Court experts there has also been evidence by Mr G B Winning on behalf of the applicant in relation to the area of Dr Clements' expertise. I should indicate that apart from the issues covered by the three Court experts, some engineering issues have arisen which have not been resolved and which, if the Court was disposed to granting a consent, would require further investigation and report. 5 In the interests of coming directly and quickly to the point, the Court is of the view that the reports of the three Court experts should be adopted. Each of those experts has come to the conclusion that the development should be refused for the grounds set out in each of those reports. 6 Mr Ingham's report, as I have said, covers planning matters. He also draws heavily on the report of Dr Parolin, but it might be observed that there is a direction under s 117 of the Environmental Planning Assessment Act 1979 ("the EP&A Act") relating to highway service centres along the Pacific Highway, North Coast. Direction 28 is a plan making direction and it sets out a number of objectives and principles relating to highway service centres. Of particular importance in this case is a statement in the direction that highway service centres be spaced no closer than 24 kilometres from another highway service centre or a town through which the highway passes. The proposed service centre here is, I understand, about 24 kilometres from the nearest highway service centre at Raymond Terrace. 7 The Court has also been informed that on 11 May 2004 the council passed a resolution to prepare a draft local environmental plan. That draft local environmental plan has been the subject of a s 65 certificate in accordance with the EP&A Act and, I am informed, is now on public exhibition. The draft local environmental plan implements recommendations in a report which, in turn, recommends that highway service centres be no longer permitted along the Pacific Highway within the council's area, although the s 117 direction refers to a distance of 24 kilometres from one highway service centre to another. It is to be noted that the Commonwealth Department of Transport has specified that distances between highway service centres should be much greater than 24 kilometres, namely a minimum of 50 kilometres. 8 As I have said, Mr Ingham draws heavily on the report of Dr Parolin in coming to his conclusions, which are adopted by the Court, as follows: that the bypass road to which I have referred will already impact significantly upon the economy and the availability of jobs within the township of Karuah; and that the proposed highway service centre could provide a significant number of jobs to ameliorate the job losses within Karuah. 9 The Court has been informed that the highway service centre will create 65 five new jobs, which will provide some amelioration of its impact upon businesses which rely upon highway traffic. 10 It is also concluded by Mr Ingham that the town of Bulahdelah, as well as Karuah, will be significantly impacted upon by the proposed service centre development. That town will, of course, obtain some benefit from the bypass of Karuah, but the overall impact of the proposed highway service centre upon the towns of Karuah and Bulahdelah will be negative. In Mr Ingham's opinion the proximity of the proposed highway service centre to Raymond Terrace does not provide a sufficient reason for the establishment of the proposed highway service centre. 11 I turn now to the second Court expert to whom I have referred, namely Dr Parolin. He has examined the proposal from an economic impact point of view. In this respect the role of the Court is clear: if facilities presently enjoyed by the community are put in jeopardy and the resultant community detriment will not be made good by the proposed development, then that is a proper consideration: Kentucky Fried Chicken Pty Ltd v Gantidis (1978) 140 CLR 675; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2002) 122 LGERA 288. 12 The position in relation to economic impact is as follows. In relation to Karuah itself, absent the service centre, there will, of course, be a negative effect caused by the bypass alone. The introduction of the highway service centre will be a further negative effect for businesses in Karuah. 13 The Court heard evidence from Ms S Mooney, the manager of the Mobil service station in Karuah, who said that the service station also provides meals and convenience shopping for buses. The Mobil service station in Karuah is apparently a coach stopping point for coaches travelling the highway and Ms Mooney purchases all the supplies needed for buses and other travellers from the local baker, the local butcher, the local newsagent and the local milko. 14 The Court heard evidence from other residents of Karuah including Mrs G R Leaf, who is the secretary treasurer of the Karuah Aquatic and Oyster Festival and is a member of the Economic and Development Committee. She said that there are a number of retirees in the town. It is a small town that has at present all the daily needs of the residents and if any of those daily services that meet their needs are lost, then it will create problems for elderly people, some of whom do not drive. There will clearly be reductions in turn-over of the various highway oriented businesses in Karuah which will in turn lead to a reduction in employment, which will have a flow on effect upon other businesses in the town. 15 According to Dr Parolin a total of 38 jobs at six businesses are likely to be lost as a direct result of the proposed development at Karuah. A total of 97 jobs will be lost as a result of the combined effect of both the bypass and the service centre. Of that total loss, as I said, 65 new jobs will be created at the service centre. 16 According to Dr Parolin the multiplier effect of reduced salaries and wages and reductions in the purchasing of goods and services in Karuah is very likely to be significant. It will severely impact upon the viability of several non-highway related businesses in Karuah. Dr Parolin accepts that local purchases are made by the petrol stations that operate there and which also operate restaurants or provide take away food and that there are linkages between local suppliers, such as the bakery and the newsagency supplying newspapers and magazines to those petrol stations. 17 In the case of Bulahdelah the impact would appear to be equally noticeable. Bulahdelah has a high level of employment dependence upon the Pacific Highway. According to Dr Parolin, highway generated trade corresponds to 70 per cent of the total town product. He states that a total of 124 jobs at 12 businesses are likely to be lost in Bulahdelah as a direct result of the proposed development at Karuah. This figure represents 29.5 per cent of total employment in Bulahdelah. He then refers to the multiplier effect of reduced salaries and wages, or no wages, on reductions in the purchase of goods and services in Bulahdelah and says this is likely to be very significant and will adversely impact on non-highway related sectors of that economy. All of the establishments that provide meals at Bulahdelah source their provisions locally from the butcher, the baker, the fruit and vegetable shop and the supermarket. Most businesses purchase stationary from the newsagency and the post office. 18 The Court has also heard evidence from a number of business proprietors in Bulahdelah. According to the proprietor of the butchery, 42 per cent of its trade is highway related in the sense that it supplies the cafes, service stations, service station restaurants and motels; and in addition to that another 10 to 15 per cent of highway customers directly use the butcher in the summer months. Mr Harvey, the newsagent, said that he supplies the service stations with newspapers and that that part of his trade generates a turn-over of $2,000 per week. The loss of highway related sales would have a huge impact on his business. 19 According to Mr Schultz, a cafe proprietor, 70 per cent of his customers come from the highway and moreover, he says, three of the service stations in the town are what he described as "the heart and soul of the town". Mr Ahmling, another proprietor of a cafe, says that 95 per cent of his business is related to travellers, including buses. He says that he will probably end up being "a mum and dad business" after the opening of this proposed development if it is allowed to proceed. That is, he would not be able to afford to engage any employees. 20 As I have noted, these business proprietors source their needs from the local butcher and bakery. According to the secretary of the Bulahdelah Chamber of Commerce, the Roads and Traffic Authority of New South Wales have convened a number of meetings with residents of Bulahdelah and at such meetings it stated that it would not allow any highway service centres between Raymond Terrace and Taree and that Bulahdelah would remain a highway service town. 21 Overall, the Court is satisfied from all this evidence that there is a real risk that facilities enjoyed by the community at both places, that is Karuah and Bulahdelah, will be put in jeopardy if the proposed development proceeds, not only the cafes but particularly facilities which are made use of on almost a daily basis, namely the bakery in each town and perhaps also the butchery. The Court, therefore, adopts the reports of both Mr Ingham and Dr Parolin. That, in turn, means that this development application will fail. 22 It is not strictly necessary, therefore, to deal with the report of Dr Clements. However, it is worth making some observations about it because it has been the subject of evidence and submissions. The subject site contains a plant known as Tetratheca juncea which is listed as a vulnerable species under the Environment Protection and Biodiversity Conversation Act 1999 (Cth) and is listed in the schedule of the Threatened Species Conservation Act 1995 (NSW). That means that the Court must give consideration as to whether or not a species impact statement is required. Dr Clements has applied the eight-part test required by s 5A of the EP&A Act and concludes, for reasons set out in her report, that a species impact statement is required. 23 The focus of attention has been whether there will be an impact upon a viable local population of the species; that is, whether there is a risk that a viable local population of the species is likely to be placed at a risk of extinction. There is a number of clumps, if I can call them that, of the species in the local area, including upon the subject land. There is no doubt that some 25 clumps of the species will be directly impacted upon by the proposed development; but it is proposed that they be transplanted and placed in an area where they will be protected. Nevertheless, Dr Clements remains concerned that the species is at risk because of its physical isolation by the proposed works at the subject site. It seems that there is a need for it to be within 500 metres of other clumps of the species because the method of pollination is by bees. There is in fact another colony of the Tetratheca juncea within 500 metres. It is, therefore, essential in Dr Clements' opinion that the species that exist on the subject site not be lost. Dr Clements is also concerned that run-off from the paved areas may affect the acidity of the soil, that there will be edge effects from the development, and that any measures proposed in a management plan may not be effective to achieve the intended purpose. As I have said, the Court does not have to come to a firm conclusion as to whether or not a species impact statement is required, but since on balance the local population may be put at risk by the proposed development the Court is inclined to the view that a species impact statement is required on that ground alone. 24 It follows that the engineering issues to which reference has been made need not be investigated further. This site is not an appropriate site, in the Court's opinion, for a highway service centre. It follows that the formal orders will be that the appeal be dismissed and the development application is refused. I hereby certify that the preceding 24 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate ********** 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.