Land and Environment Court of New South Wales CITATION : Miltonbrook v Shellharbour [2004] NSWLEC 86 revised - 17/03/2004 Miltonbrook Management Pty Ltd Applicant PARTIES : Shellharbour City Council Respondent FILE NUMBER(S) : 10957 of 2003 CORAM: Roseth SC Development Application - Development Control Plan - Planning Instruments - Subdivision :- Channelisation of natural creek KEY ISSUES: Filling in of floodplain Planning principle: conservation v development LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/02/2004 - 20/02/2004 DATE OF JUDGMENT: 03/16/2004 Mr J Ayling,SC instructed by Mr P Moggach of Kearns & Garside LEGAL REPRESENTATIVES: Mr T Robertson, SC instructed by Mr M Mantei of Kells Lawyers JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10957 of 2003 Roseth SC 16 March 2004 Miltonbrook Managements Pty Ltd Applicant v Shellharbour City Council Respondent Judgment Introduction 1 This is an appeal against the refusal by Shellharbour City Council (the council) of a development application to subdivide for urban development lots 551 DP 1017233, Lot 56 DP 739857, lot 2 DP 792437 and lot 1 DP 570091, Illawarra Highway, Yellow Rock Road and Sophia Street, Albion Park. The site 2 The site is a collection of rural parcels with a total area of about 80 ha. To the east it adjoins an existing suburb called Regal Heights. To the north it adjoins the Illawarra Highway (also called Tongarra Road). To the west it adjoins Yellow Rock Road, beyond which the land is also rural. To the south it also adjoins rural land. 3 Hazelton Creek traverses the site from south to north, passing though a culvert under Illawarra Highway. It has several tributaries called Digby Creek, Cooback Creek and an unnamed creek. The creeks are intermittent, carrying water for about fifty days a year. The edges of the creek are eroded as a result of grazing. There are also several dams on the site. The proposal 4 The applicant seeks to · subdivide the land into 851 residential lots, 12 super lots, 1 school site, 12 public reserves and 2 residue lots, · carry out stormwater management works and creek rehabilitation, · obtain approval for Building and Access Guidelines (BAGs) for future dwellings. 5 The residential lot sizes range from 240m2 to 1,134m2. Four of the super lots are identified for residential and eight are identified for retail/commercial or for a mix of residential and home businesses. Development of the super lots will follow further development applications. 6 The residential lots are a mixture of narrow small lots with access from a rear lane, lots that share a driveway from the street with three other lots, and larger lots that have access from the street. The development is to be staged over ten years. History of the application 7 The site was part of Area 9 under the Illawarra Urban Development Program. The rezoning process commenced in 1990. It progressed through an environmental study in 1992 and culminated in the council's rezoning it to Mixed Use Residential 2(e) in 1994. In 1996 the planning of the area (referred to as the western valley) continued with a planning charrette. The council and other land holders were part of the process. The outcome of the charrette was a structure plan that was exhibited in 1996 and then incorporated in the Tullimbah Village Development Control Plan. That Plan contains, in addition to the structure plan, guidelines for development. Among other things, it establishes street widths and, atypically, a minimum dwelling yield of 1,500 dwellings, though for a larger area than the site. 8 In June 2001 the council granted consent to an application that was very similar to the current one. Subsequently this Court ruled the consent invalid on the basis that the proposal was designated development but had not been processed as such. In September 2002 the applicant re-submitted the application in different form (so as to avoid being classified as designated development). In October 2003 the council's Manager of Development Services recommended approval of the application. The council did not accept the recommendation and refused the application. 9 The applicant lodged the appeal in August 2003. The council raised two questions of law. On 13 February 2004 Pain J found that the current proposal was not designated development and not extractive industry. On 17 February 2004 the council applied for a stay of the merit hearing on the basis that it wanted to appeal Pain J's decision, however the application was dismissed and the hearing proceeded. Relevant legislation, planning instruments and policies 10 The Shellharbour Local Environmental Plan 2000 zones this site 2(e) mixed use residential zone. The Tullimbah Village Development Control Plan (the DCP) provides guidelines for a "mixed use urban village for the western valley area of Albion Park". The Water Quality and River Flow Interim Environmental Objectives Illawarra Catchments (the Environmental Objectives) provides (presumably interim) policies for the catchments of the Illawarra Region. The NSW Weirs Policy of 1997 published by the (then) Department of Land and Water Conservation is, according to the council, relevant to this application. The NSW State Groundwater Dependent Ecosystems Policy of 2002, the NSW Groundwater Quality Protection Policy and the NSW State Rivers and Estuaries Policy are also relevant. The issues 11 The council submitted a Statement of Issues containing 10 issues that were divided into 50 sub-issues. Of these it pressed 8 issues containing 30 sub-issues. In my opinion, the issues can be further simplified, as follows. 12 The first issue is about the drainage arrangement. The applicant proposes to divert the existing intermittent creek running through the site into an artificial channel. The council objects to the diversion and favours the rehabilitation and retention of the creek in its present location. The applicant proposes treatment ponds through which the surface water flows and which the council therefore calls "on-line". The council would prefer the treatment ponds to be "off-line". The applicant proposes to fill in the flood plains on either side of Hazelton Creek. The council would prefer to leave the flood plains undeveloped, with a buffer between them and urban development. While the parties agree that the quality of discharge will be equal to or better than the existing, the council contends that the applicant should treat the surface water to a higher quality. 13 The second issue concerns the traffic generated by the proposed development. The council contends that the traffic conditions on Tongarra Road outside the Catholic school will be unacceptable. 14 The third issue is that the proposal's layout may encourage crime and that therefore the applicant should have carried out a "contextual (community) crime assessment" before the proposal was designed. The council does not say that this is a determinative issue. 15 The fourth issue is a dispute about the width of carriageways within the development. The evidence of objectors 16 The Court heard the evidence of three objectors, all residents of Albion Park. Mrs P Turnbull, Mrs S Brown and Councillor T Howter said that they opposed the development because the infrastructure and services in Albion Park are stressed already and could not cope with population expansion. The schools are full, traffic is choking the roads, there is nowhere to park and crime is rampant. Councillor Howter added that public transport was poor and the nearest railway station was too far. In his opinion, development should occur only where there is adequate infrastructure. 17 I do not think that the above objections, sincerely held though they may be, are sufficient to justify refusal of the application. Apart from the matter of traffic in front of the Catholic school (which is an issue in the case dealt with below), there was no hard evidence on the inadequacy of the existing infrastructure. The council had designated the site for urban development in the early 1990s. In its DCP it requires a minimum, rather than the usual maximum population on the site. According to the Department of Infrastructure, Planning and Natural Resources (DIPNR), the release of approximately 100 lots per annum from Tullimbah Village is a factor underlying land release decisions in the Illawarra. The applicant is required, and has accepted the obligation, to pay its share of the cost of services where these costs are identified in section 94 Plans. If these Plans do not adequately deal with the need for services, it is a problem only the council can redress. The drainage arrangement Evidence 18 Dr D Martens, an environmental scientist, gave evidence in the council's case on drainage, water quality, geomorphology and impact on groundwater. The applicant's experts were Dr T Johnson, an engineer with special expertise in water engineering and water quality, Dr M Taylor, an expert on geomorphology, Mr P Nichols and Mr S Roso, drainage engineers, and Dr S Short, an expert on groundwater who was a member of the Illawarra Catchment Management Committee between 1996 and 2000. The following were the main points of disagreement. · Dr Martens said that the proposed drainage system is not a naturally functioning system and therefore it contravened the DCP. Dr Short agreed that it was an artificial system, but added that the present course of Hazelton Creek also cannot be considered natural, as its geomorphic configuration has been significantly affected by agricultural practices. In his opinion, the proposed channels will recreate the same areas of permanent pools and permeable cobble/gravel zones as currently observed in the creek system. Dr Taylor said that there is nothing of unique geomorphic interest in the current degraded Hazelton Creek. · Dr Martens said that the proposed drainage channel contained too many weirs. Weirs were undesirable and against government policy. In cross-examination he agreed that the policy applied primarily to non-urban areas. Dr Johnson did not agree that the structures in a drainage channel were properly called weirs, or that the government policy applied to them. · Dr Martens said that the applicant has not carried out sufficient study to assess the development's impact on groundwater level and quality. Dr Short said that there is a sufficient body of general understanding of potential risk to groundwater from urban development to conclude that there would be no adverse groundwater-related effect on land downstream (ie north of Illawarra Highway). Dr Short was satisfied that the proposal complied with all of the government's policies related to groundwater. · Dr Martens said that the applicant has not provided sufficient information to assess the geomorphologic impact of the proposed development. Dr Taylor said that the assessment he provided was adequate. They agreed that there would be a decrease in the total flood plain area and the sediment supply to the flood plain north of the Highway. They also agreed that there may be higher flow volumes than existing and therefore the channel is likely to be armed. (In Dr Martens' view this would increase its "unnaturalness", while in the view of the applicant's experts this was the normal outcome of urbanisation.) · Dr Martens said that the extent of excavation and fill was excessive. Mr Nichols and Mr Roso considered that channelisation and bank protection are necessary in the urban context. The amount of excavation and fill in this proposal is consistent with common engineering practice in land development. · It was common ground that the quality of surface water discharging from the site would not meet ANZECC guidelines. Dr Martens said that the quality of surface water might not be better than the existing. Dr Johnson disagreed. He pointed out that the Environmental Protection Authority's Guidelines require only that the existing quality should not decline. In defence of his position he pointed out that the catchment was approximately 300 ha, while the area under development was about 80 ha. A large part of the remaining 220 ha continued to be in agricultural use. The development also treated surface water from the adjoining residential estate of Regal Heights, which had no stormwater treatment. It was not the responsibility of this development to treat highly polluted water from the upstream agricultural areas. · Dr Martens said that the treatment ponds should be off-line rather than on-line, so as to allow surface run-off to stay longer in the treatment ponds. Dr Johnson said that there would be separation between the channel and the ponds in the 1:5 year event, and that this was acceptable. The separation had to be balanced against cost and amenity, namely the height of the bund required. Findings 19 At the heart of the dispute is Dr Martens' opinion that the applicant should have designed the drainage system by rehabilitating the existing creek. Most of his other criticisms flow from this basic premise. He supported his opinion by reference to the DCP. 20 I do not think that the DCP deals with this issue clearly. The plan shows the creek in its existing location, though not quite as meandering as it now is. In any case, the applicant has proceeded along a different path to designing the drainage system to that which Dr Martens prefers. It may be that Dr Martens' approach has a higher ecological value; however, he has not shown how this is balanced against economic, social and amenity values. I do not think that it can be argued (and I did not perceive Dr Martens to argue) that the channelisation of a creek is an unusual response to dealing with the drainage of a residential suburb. In order to refuse the application on the basis that it adopted a wrong approach, it is not sufficient for the council to show that a better design was possible. It is necessary to prove that the proposed method is unacceptable. In my opinion, Dr Martens has not proved this. 21 I am strengthened in the above conclusion by the fact that the council has once approved the proposal with a similar drainage design and, on a second occasion its staff recommended approval for exactly the same drainage design. Moreover, the drainage design needed the approval of the (then) Department of Land and Water Conservation and its successor, DIPNR. DIPNR has issued its general terms of approval, which are part of the conditions of consent. It is common ground that DIPNR's approval followed negotiations between the applicant's experts and the Department's expert staff. 22 I note that Dr Martens has numerous criticisms in addition to the fact that the creek has been relocated, though in my opinion most of those criticisms are related to his basic premise. I have listed the criticisms above, together with the applicant's response. On all points I have accepted the applicant's evidence, for the reasons given by the relevant expert. Government policies 23 In the council's submission, the channelisation of Hazelton Creek is in conflict with several government policies, principally the Environmental Objectives and the NSW Weirs Policy. The council's advocate, Mr T Robertson SC, took the Court through the document. The first thing to note about it is that it is a guideline for river, groundwater and water management committees and not for consent authorities assessing development application. Despite this, some objectives are relevant, ie: Water quality in artificial watercourses (eg drainage channels) should ideally be adequate to protect native species that may use them, as well as being adequate for the desired human uses. However, full protection of aquatic ecosystems may not be achievable in the short term in some artificial watercourses. 24 The drainage system in this proposal is not in conflict with the above objective. I turn to the NSW Weirs Policy, which aims to discourage the construction of new weirs. If weirs are defined as any structure that will pond water, the proposed drainage system includes weirs. However, it was not suggested that these "weirs" are licensable work under the Water Act 1912. If they are not, then the Weirs Policy does not apply to them. 25 A letter of Mr A Tennie, Regional Director South Coast of DIPNR dated 15 January 2004 suggests that that Department considers the proposal to be strongly aligned with government policy. Among other things Mr Tennie states: The release of approximately 100 lots per annum from the Tullimbah Village proposal has been one of the planning factors underlying land release decisions in the Illawarra. If the development area is delayed or does not proceed, there will be significant price pressures and call to fast track development on less suitable land. 26 Further in the letter Mr Tennie states: The Tullimbah Village proposal is consistent with the Department's policies on the protection and rehabilitation of riparian corridors and flood management. The various creeks flowing through the site are significantly degraded, some with no riparian vegetation or natural function. Through extensive consultation the Department has been able to identify benchmarks and design principles that are agreeable to the developer so as to make significant environmental improvements to these areas. The Department appreciates that the developer is willing to form a design team with the Department and the council to ensure that the design of the riparian corridor meets the Department's benchmarks. These principles and benchmarks have been identified in the General Terms of approval for the development in relation to the future issue of a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948. 27 DIPNR is the successor to the Department of Land and Water Conservation, the author of the Environmental Objectives and the Weirs Policy. I conclude that the proposal is consistent with relevant Government policies. Filling in of the flood plains 28 Mr G Sainty, a wetland specialist, gave evidence in the council's case. Dr Roberts and Mr Nichols dealt with the issue in the applicant's case. Mr Sainty said that the creek's floodplain had ecological value, could regenerate and should therefore not be developed. Rather, there should be a 30-40m buffer between urbanisation and the floodplain. 29 I accept Mr Sainty's evidence of the floodplain's value, though I note that it can hardly be said to be pristine, having been grazed on for the past hundred years. I accept that the floodplain could be regenerated to its natural state, though the decision to do so would have to encompass the whole catchment rather than just this site, which is only about a quarter of it. However, the council's decision was to zone this site for residential development at higher than usual densities. If Mr Sainty's recommendation were followed, the potential of the site would be a fraction of what is proposed. Planning principle 30 It is a widely accepted planning principle that certain areas are set aside for conservation, others for regeneration and yet others for development. This site has been designated for development. It has been zoned residential for nearly a decade. A site-specific DCP shows development on the floodplains. If the application were refused on the basis that the flood plain should be kept clear of development, it would amount to a dismissal of a ten-year planning process, of which the council and the State government were part. 31 In my opinion, the filling in of the floodplain is not a reason for refusal. Traffic in front of the Catholic school 32 The council's traffic expert was Mr P van den Bos, while the applicant's was Mr J Higgs, both traffic engineers. The experts agreed that the only potential traffic problem would occur on the Illawarra Highway in front of the Catholic school. They also agreed that the additional traffic due to the development would be 500 vehicles/hour in the peak hour. Since the existing traffic was 230 vehicles/hour, the total traffic would be 630 vehicles/hour in the peak hour. The difference between them was that Mr van den Bos considered this unacceptable and unsafe for the pupils, while Mr Higgs thought it was acceptable. 33 In my opinion, Mr Higgs' evidence is more persuasive. First, I do not accept Mr van den Bos' opinion that the Illawarra Highway can be considered a "collector road', the environmental capacity of which is 500 vehicles/hour. Second, Mr Higgs pointed out that the school leaving time of 3.00 to 3.30 pm does not coincide with the evening peak hour. While there was no traffic count to confirm this, it appears to me to be a common sense observation. Third, it was common ground between the experts that 630 vehicles/hour were within the capacity of the Illawarra Highway. Fourth, as Mr Higgs pointed out and was obvious on inspection, the road reservation at the school is very wide. Fifth, the council and the school can adopt various traffic calming options to counteract the effect of additional traffic. 34 I note that, despite Mr van den Bos' and Councillor Howter's opinion that the second stage of the proposed Tripoli Way bypass is needed to solve the traffic problems on Illawarra Highway, the council's section 94 Plan includes only the first stage. The last revision of the Plan dates from 1999/2000, ie long after the decision was taken to allow urban development on the site. This suggests that in 1999 the council did not consider that urbanisation of the site would justify the second stage of the bypass. If that opinion has changed since, a revised section 94 Plan could rectify matters, though, of course, it would be too late to obtain contributions from this proposal. In my opinion, the traffic likely to be generated from the site is not a reason for refusal. Crime prevention 35 The council's expert on crime prevention was Professor D Robertson. His main criticism was that the designers of the development did not undertake a "contextual (community) crime risk assessment" before designing the subdivision layout. The council's advocate, Mr T Robertson, did not suggest that this was a failure that justified refusal. Since it was a criticism about something that was not done before the subdivision was designed, the applicant cannot now rectify it. I note that, in twice recommending approval for this proposal, the council's planning staff has not asked for such an assessment. I also note that Professor Robertson had no suggestions for changing the layout to improve safety. There was no example of a contextual (community) crime assessment before the Court, nor was there evidence how such a thing might influence subdivision design. In the circumstances, I do not regard this as a serious issue. Width of local streets 36 The parties were in dispute about the width of a minority of internal roads. The extent of disagreement was minor. In respect of one type of road, the council's engineer, Mr A Heaven, said that it should be 7.5m wide, while Mr Higgs advocated 7.2m. In respect of another type of road, Mr Heaven wanted it 6m wide, while Mr Higgs advocated 5.5m. There was no dispute about the width of the reservation, only about the paved carriageway. 37 In my opinion, Mr Heaven did not establish strong enough reasons to change the road design of a subdivision in which the emphasis is on sustainability rather than on the primacy of the car. There was no suggestion that cars could not drive on the narrower roads, only that they may have to move more slowly. I have therefore accepted the applicant's position on the (slightly) smaller road widths. Orders 1. The appeal is upheld. 2. Development application to subdivide for urban development lots 551 DP 1017233, Lot 56 DP 739857, lot 2 DP 792437 and lot 1 DP 570091, Illawarra Highway, Yellow Rock Road and Sophia Street, Albion Park is determined by the granting of consent subject to the conditions in annexure A. 3. The exhibits are returned, except Exhibits 7, B, C, S and T. _________________ Dr John Roseth 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.