Land and Environment Court of New South Wales CITATION : Kidman Group Pty Limited v Tamworth Regional Council [2010] NSWLEC 1244 APPLICANT Kidman Group Pty Limited PARTIES : RESPONDENT Tamworth Regional Council FILE NUMBER(S) : 10412 of 2009 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Land filling, industrial development; flooding risk, filling impacts, provision of services, economic and orderly development, public interest Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 55 - Remediation of Land State Environmental Planning Policy No. 64 - Advertising and Signage Tamworth Local Environmental Plan 1996 LEGISLATION CITED: Draft Tamworth Regional Local Environmental Plan 2009 Tamworth Development Control Plan No. 1 Traffic and Parking Guidelines Tamworth Development Control Plan No. 3 Outdoor Advertising Guidelines Tamworth Development Control Plan No. 4 Guidelines for Industrial Development Tamworth Development Control Plan No. 9 Outdoor Lighting Guidelines Tamworth Development Control Plan No. 18 Interim Floodplain Management Guidelines CASES CITED: Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41 Atkins v Maitland City Council [2010] NSWLEC 36 DATES OF HEARING: 8, 10 March, 25 May, 9,10,11,21 June 2010 DATE OF JUDGMENT: 31 August 2010 APPLICANT Ms S Duggan (Barrister) SOLICITOR MacLean & Curtis Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr C McEwen (Senior Counsel) Mr M Staunton (Barrister) SOLICITOR Mallik Rees Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 31 August 2010 10412 of 2009 Kidman Group Pty Limited v Tamworth Regional Council JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for the importation and placement of filling to enable the construction of 11 large industrial units above the designated flood level for the area. The site is located in Dampier Street, Taminda and is situated in proximity to the Peel River floodplain. 2 A number of issues were identified for the appeal and are summarised as follows: - Inadequate information; with particular reference to proposed stormwater arrangements, water quality and sediment control; - Site servicing arrangements; particularly water and sewerage arrangements; - Flood liability and risks; - Economic and orderly development; - Public interest/objections. The site 3 The subject land is described as Lot 23 in DP260129. It has a frontage of 245.85 metres to Dampier Street. The northern boundary is 221.72 metres, the western boundary is 236.5metres and the southern boundary is 218.35 metres. The total area of Lot 23 is 5.304 hectares, as shown in Attachment A. 4 The proposed development comprises the full area of the site, which is vacant of any buildings or permanent improvements. The site contains a number of trees along the Dampier Street frontage, which are likely to be removed as a result of the development. There are also other trees located along other boundaries of the site. 5 The site is gently sloping falling approximately 1.4 metres from the south eastern corner (373.19m AHD) to the north eastern corner (371.83m AHD). 6 The site contains an easement 6m wide running from the middle of the western boundary through to the south eastern corner of the lot. The easement contains a sewer main servicing the property and surrounding development. 7 There are areas of uncontrolled fill placed along the southern and south western corner of the site. Part of the site has been identified as being inundated by the 1% flood in the Floodplain Management Study - City of Tamworth, prepared by PPK Consultants Pty Ltd/Lyall and Macoun Consulting Engineers Pty Ltd, January 1993 for Tamworth City Council). The proposal 8 The initial proposal was for earthworks on the site to raise the site to a level of RL 373.35 to provide flood – free building platforms for 11 industrial style buildings i.e.: "industrial unit estate". 9 Each proposed building is rectangular in shape and constructed of pre-coloured metal and pre-cast concrete panel and non reflective roofing material. Floor areas range from 888m2 to 1,980m2. Total floor area for the development is 17,519m2 of general industrial and 1,386m2 of ancillary office space. 10 The particular use of the buildings is not specified within the application, other than they are to be used for general industrial use. The proposal envelops the whole of the site and provides for internal road circulation comprising a 2 – way central spine from the entrance, running north to south, and bisected east to west at three intersections. 11 The bulk earthworks are to achieve a minimum finished ground level of RL373.35, which was designated as 0.55m above the 1:100 year Annual Recurrence Interval. From the various documents submitted with the proposal there is some uncertainty about the amount of filling, but it is likely to be in the order of 59,000 cu m (SoEE, pg 10). It is also proposed that the fill be battered by a 7m wide landscaped area to the Dampier Street frontage, although there are no specific details provided. 12 The proposal also includes placement of road base for internal road design, suitable for B-Double use; loading and unloading areas for each unit, dedicated on site car parking areas for 263 vehicles and landscaping. 13 During the appeal, the applicant clarified that it was also proposed to construct a 70m long retaining wall at the back of the existing Kingsford Smith Drive properties to the north of the site. Also to construct a retaining wall adjacent to the southern boundary of the site to prevent the ingress of overland flows. Planning controls 14 The proposal is subject to a raft of controls including: State Environmental Planning Policies + State Environmental Planning Policy No. 55 - Remediation of Land; The site contains areas of fill of uncertain material and it has also previously been used for agricultural purposes. Consequently the site is potentially contaminated thereby triggering the relevant provisions of this policy or the relevant Council policy. + State Environmental Planning Policy No. 64 - Advertising and Signage; No details of signage were been submitted with the application. + State Environmental Planning Policy (Infrastructure) 2007; In accordance with Schedule 3 the development comes within the definition of "Parking – 200 or more vehicles", requiring referral to the Roads and Traffic Authority. The application includes parking for 263 vehicles and consequently was referred to the RTA who did not raise objection to the proposal. Tamworth Local Environmental Plan 1996 (TLEP) 15 The site is subject to the provisions of the TLEP, under which it is zoned 1 (c) Flood Liable and industries are prohibited unless clause 15 is satisfied. The development control table for this zone is set out in clause 10 and provides: 1(c) Flood Liable Objectives of the zone (1) The general objectives of this zone are: (a) to identify land liable to periodic inundation and generally within the high hazard storage of floodway areas located in the City of Tamworth which should be kept free of buildings or works liable to be damaged by floodwaters or likely to adversely affect the flow of floodwaters or to endanger human life when affected by floods, (b) to ensure the proper management of land within this zone by excluding or controlling development likely to have an adverse effect on the environmental value of that land, and (c) to identify urban floodways as localities requiring special planning considerations and development control policies. (2) The specific objectives of this zone are: (a) to reduce the risk to life and potential damage to property and the environment in localities subject to flooding hazards, (b) to permit development for certain purposes only where it can be demonstrated: (i) that the development would not adversely affect or be adversely affected by flood processes, and (ii) that such development will not destroy, damage or compromise ecological processes and hydraulic function, or degrade the scenic amenity, landscape quality, recreational opportunities or heritage significance of the riverine environments within the City of Tamworth, (c) to encourage recreational use of the riverine environment, (d) to control land-clearing and surface modification, and (e) to permit development of the land within the zone in a manner which will neither adversely affect any associated physical, chemical and ecological riverine environment nor the natural and cultural heritage values of any associated riverine environment. 16 Clause 6 of the LEP defines the proposal as an "industry", as follows:- 'industry' means the manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting of any goods or articles. 17 Clause 15 of the LEP relevantly provides: Can flood-free land zoned 1(c) be developed? Land zoned 1(c) may, with the consent of the Council, be developed for a purpose permissible, within Zone No. 1(a) (but prohibited within Zone 1(c)) if the Council is satisfied, on the basis of a topographical survey report from a registered surveyor, that the natural surface of the land proposed to be developed is above the 1 in 100 year flood level as identified in the Tamworth Floodplain Management Study, a copy of which is deposited in the office of Council and available for public inspection during office hours. Draft Tamworth Regional Local Environmental Plan 2009 (DLEP) 18 The DLEP was placed on exhibition from 14 July 2009. The subject land is proposed to be zoned RU4 Rural Small Holdings under this draft LEP and it has not yet been gazetted. 19 The land use table for the proposed RU4 Rural Small Holdings provides: Zone RU4 - Rural Small Holdings 1 Objectives of zone o To enable sustainable primary industry and other compatible land uses. o To maintain the rural and scenic character of the land. o To ensure that development does not unreasonably increase the demand for public services or public facilities. o To minimise conflict between land uses within the zone and land uses within adjoining zones. 20 Light industries are permitted in this zone with consent. 21 The aims of the DLEP are set out in Clause 1.2 as follows: 1.2 Aim of Plan (2) The particular aims of this Plan are as follows: (a) to encourage the orderly management, development and conservation of natural and other resources within the local government area by protecting, enhancing or conserving: (i) prime crop and pasture land, and (ii) timber, minerals, soil, water and other natural resources, and (iii) areas of significance for nature conservation, and (iv) places and buildings of archaeological or heritage significance; (b) to allow flexibility in the planning framework so as to encourage orderly, economic and equitable development while safeguarding the community's interests and residential amenity; (c) to manage and strengthen retail hierarchies and employment opportunities, promote appropriate tourism development, guide affordable urban form and provide for the protection of heritage items; (d) to promote ecologically sustainable urban and rural development and control the development of flood liable land; and (e) secure a future for agriculture by expanding Tamworth's economic base and minimising the loss or fragmentation of productive agricultural land. 22 Clause 1.8 of the DLEP contains the following savings clause: 1.8 Savings to provisions relating to development applications. If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. 23 As the application proposes "earthworks" clause 2.6C of the DLEP is relevant: 2.6C Earthworks. (1) The objectives of this clause are as follows: (a) to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features of the surrounding land, (b) to allow earthworks of a minor nature without separate development consent. (2) Development consent is required for earthworks, unless: (a) the work is exempt development under this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, or (b) the consent authority is satisfied the earthworks are of a minor nature. (3) Before granting development consent for earthworks, the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or of the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material or the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or other relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area. 24 Clause 7.5 of the DLEP relevantly states: 7.5 Flood planning areas . (1) The objectives of this clause are: a) to maintain the existing flood regime and flow conveyance capacity; and b) to enable safe occupation and evacuation of land subject to flooding; and c) to avoid significant adverse impacts upon flood behaviour; and d) to avoid significant adverse effects on the environment that would cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of the river bank/watercourse; and e) to limit uses to those compatible with flow conveyance function and flood hazard. (2) This clause applies to land subject to the discharge of a 1:100 ARI (average recurrent interval) flood event, which includes land identified as a flood planning area on the Flood Planning Map. Note. Only land that is within known flood planning areas are shown on the Flood Planning Map. (3) Development consent is required for the following on land identified as a flood planning area on the Flood Planning Map: a) earthworks; b) the erection of a building; the carrying out of a work; flood mitigation works (other than those carried out by or on behalf of a public authority). (4) Consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: a) will not adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; and b) will not significantly alter flow distributions and velocities to the detriment of other properties or the environment; and c) will enable safe occupation and evacuation of the land; and d) will not significantly detrimentally affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of the river e) bank/watercourse; and f) will not be likely to result in unsustainable social and economic costs to the flood affected community or general community as a consequence of flooding; and g) if located in a floodway, (i) is compatible with the flow conveyance function of the floodway; and (ii) is compatible with the flood hazard within the floodway. (5) In this clause: flood planning area means the land shown as "Flood Planning Area" on the Flood Planning Map. Floodway means the land shown as "Floodway" on the Flood Planning Map. 25 The DLEP defines Flood Planning Map as follows: Flood Planning Map means the Tamworth Regional Local Environmental Plan 2009 Flood Planning Map. Development Control Plans 26 The development control plans relevant to the evaluation of the subject development comprise the following: 27 Tamworth Development Control Plan No.1 - Traffic and Parking Guidelines;- A Traffic Impact Assessment (TIA), prepared by Traffix, was submitted to the Council following lodgement of the DA by the applicant and preliminary assessment by Council officers who confirmed that SEPP Infrastructure was relevant. While the TIA addresses post development traffic flows, it does not address the significant levels of traffic which will be generated by the proposal as a result of the required filling activities. 28 Tamworth Development Control Plan No.3 - Outdoor Advertising Guidelines - No signage details accompanied the original application. 29 Tamworth Development Control Plan No.4 - Guidelines for Industrial Development; The following matters addressed by the DCP are of particular relevance to the assessment of this proposal: * Section 4.0 Objectives * Section 5.2 Matters for Consideration - A list of considerations which need to be addressed in the Statement of Environmental Effects accompanying the DA * Section 6.2 Site Coverage - Allows for a merits assessment of this issue based on compliance with other elements of the DCP such as setbacks, landscaping etc. * Section 6.3 Design and Appearance including energy efficiency. * Section 6.4 Building - This section of the DCP aims to ensure compliance with the BCA in particular relating to fire safety. * Section 6.5 Setbacks. * Section 6.6 Landscape Treatment. * Section 6.7- 6.9 Traffic, Carparking, site manoeuvring and loading and unloading facilities. * Section 6.11 Site Contamination - The section requires the submission of a Preliminary Site Contamination report to accompany the DA. * Section 6.14 Services and Drainage including the provision of water and sewer. * Section 6.15 Fire Fighting. 30 Tamworth Development Control Plan No.9 - Outdoor Lighting Guidelines. 31 Tamworth Development Control Plan No. 18 – Interim Floodplain Management Guidelines. Other policy controls 32 The subject land is located within Precinct 6 under the Taminda Revitalisation and Economic Strategy adopted by Tamworth Regional Council on 26 August 2008. 33 Precinct 6 is identified for future industrial or bulky goods development. The report states that "precinct 6 (would) be held back until the flood levee and Jewery Street extension is complete and the market becomes clearer as to the preferred land use for this site." It is stated that this precinct would provide a "longer term option for Council to identify a future flexible development area within the city limits while capital is raised via land sales and development contributions over the earlier precincts". 34 The report also notes that for precinct 6; "identification at this point as part of a longer term economic development strategy for the city will reduce pressure on Council to support development proposed for other, less desirable, out of town areas. It will also provide certainty to the market that a longer term strategy is in place to meet ongoing land demands." Relevant Flood Studies and Reports 35 The following documents according to council comprise the Tamworth Floodplain Management Study referred to in Clause 15 of the Tamworth LEP 1996: * Floodplain Management Study - City of Tamworth, prepared by PPK Consultants for Tamworth City Council (1993); * Tamworth Floodplain Management Study: FPLAIN Hydraulic Model Results, Sheet 3 of 8 prepared by Lyall & Macoun Consulting Engineers for Tamworth City Council, (July 1993). 36 In addition to this, reference was also made to the more recent Hydraulic Modelling: Peel River at Tamworth, Prepared by Lyall & Associates Consulting Engineers for Tamworth Regional Council, (December 2006); 37 The following documents are relevant to flood based investigations in respect to the surrounding floodplain: * Interim Flood Management Policy, Development Control Plan No 18, Tamworth City Council, (effective 28 September 2002); * Floodplain Management Manual - The Management of Flood Liable Land NSW Government, (April 2005); * Floodplain Risk Management Guideline: Practical Consideration of Climate Change, Department of Environment and Climate Change, (October 2007), Contaminated Land Policy 1999 38 A Preliminary Contaminated Lands Assessment is required under the Tamworth Contaminated Lands Policy given that the site was previously used for agricultural purposes and contains areas of uncontrolled fill which are both listed as potentially contaminating land use activities. The evidence 39 Detailed evidence in this matter was presented by: - Dr D Martens; Council's consulting engineer. - Mr S Leathley; Council's consulting planner. - Dr S Perrens; Applicant's consulting engineer. - Mr M Babister; Applicant's consulting engineer. - Mr A Daroch; Applicant's consulting planner. - Mr J Hanlon; ` Applicant's consulting surveyor. 40 In addition to this a number of objections, both written and oral were submitted and have been considered in the assessment of this application. Planning context 41 The raft of controls comprise firstly the TLEP, which zones the site 1(c) and the proposed industrial development is only permissible with consent under the provisions of the prevailing TLEP 1996, if the natural surface of the land is determined to be above the 1:100 year flood level. Apart from this, consideration of the DLEP is also required on the basis of the savings provisions, which identifies certain matters to be taken into account. 42 The site is then located within Precinct 6 of the Taminda Industrial Area strategy policy. Land in this general area has been progressively developed over recent years. It is apparent that a considerable amount of detailed planning for this area has occurred with Precinct 6 designated as a longer term option for future industrial development. The planning recognises that the subject land is subject to potential flooding from the Peel River because of its location adjacent the floodplain. 43 Consequently, the overall plan includes the future extension of Jewry Street as a "Future Thoroughfare (possible)" around the northern boundary of the site. The alignment of this road coincides with a proposed levee bank, which would make the subject land flood free. However no definite timing or costing is provided for the construction of these works. Flooding impacts 44 As noted previously, flooding risk/impact is the threshold matter in this case. Consequently an appropriate starting point in the merit assessment is cl 15 of the LEP. It allows the type of industrial development proposed in this 1(c) zone only if the council is satisfied that the natural surface of the land proposed to be developed is above the 1:100 flood level as identified in the Tamworth Floodplain Management Study (TFMS). 45 These provisions were recognised by the applicant and based on an initial survey plan a relatively small area on the north – eastern corner was designated as below the 1:100 flood level and set aside from industrial development. 46 However council considers a much larger area of the site and therefore the total site does not satisfy this clause. Considerable arguments were undertaken regarding; (i) the survey details and (ii) identification of the relevant components of the TFMS. 47 The council submits that the TFMS comprises: (a) the written report prepared by PPK Consultants Pty Ltd in conjunction with Lyall and Macoun Engineers Pty Ltd dated January 1993; and (b) the large scale maps titled Tamworth Flood Plain Management Study Fplain Hydraulic Model Results prepared by Lyall and Macoun Consulting Engineers Pty Ltd dated July 1993. 48 However there is some uncertainty about which documents council actually adopted. According to the council minutes (Environmental Services Department Report No 93/72 for meeting on 15 December 1993) it appears that only the maps were adopted. The reference in the report to Tamworth Flood Maps states that they will be used for the purposes of: "* providing the basis for future planning for the City of Tamworth (ie land zonings); * providing detailed information to land owners, prospective purchasers and financial institutions, on the likelihood of inundation by flood waters. * indicating the various category of floods (1:20, 1:100) for use as a component of the "Interim Flood Management Policy"". 49 The report also notes that the maps greatly improve Council's ability to provide detailed information on flood inundation, however site specific surveys will be required in those areas where existing survey information is limited. 50 From the evidence presented, the relevant plans sought to be relied upon are: i) Map 3 – Fplain Hydraulic Model Results . This is a large scale (1:4000) plan that contains contour lines and flood contour lines depicting the extent of flooding for the PMF, 1%AEP and 5% AEP. Unfortunately in this case, only the PMF is shown relative to the subject site. The 1% and 5% AEP contours cease between Dampier Street and Bass Street near the railway line creating a "missing detailed section". Accordingly it is noted on the plan that: "Flood extent for 1% and 5% not plotted in this area as passage of flows is ill defined." ii) Figure 2.1 – Definition of Floodplain is also relevant. It is a small size, unscaled diagram without levels that shows the "area inundated by 1% flood". This diagram indicates the area of land that above substantially the 1:100 year flood level. 51 The critical issue between the parties is that the applicant relies on Fig. 2.1 contained in the report, which shows the most of the land being shown above the 1:100 flood level, thereby making the development permissible. 52 However the council opposes this approach submitting that the heading for the threshold test in cl 15 is headed "Can Flood Free Land Zone 1C be Developed", which firstly refers to the whole of the land rather than parts of the land. Following this, the actual site levels relative to the 100% flood level have to be assessed on the basis of a site survey. Consequently, in the current circumstances, it is necessary to interpolate the flood levels within this "missing section". 53 The adoption of the correct assessment approach was complicated by the opposing opinions of the highly experienced engineers, inaccuracies and inconsistencies with the land levels shown on different maps and site details (1993 Study), methods of interpolation of the various flood modelling information and the submission of the results of subsequent flooding investigations (Lyall and Assoc modelling – 2006) i.e Hydraulic Modelling Report (HMR). 54 Therefore in considering these disparate submissions, I have firstly considered the applicant's approach whereby Dr Perrens initially referenced a number of documents, including the Tamworth Floodplain Management Study and Sheet 3 to determine the 1:100 year flood level. Accordingly he relied primarily on the Figure 2.1 (1993) and the data in Tables A2 and A3 of the subsequent HMR. 55 In this regard, it is apparent that Figure 2.1 is of small size, unscaled and presents no topographical details or flood levels. Therefore I consider it represents an indicative reference diagram only. Alternatively, Sheet 3 is of larger size, with a defined scale of 1:4000 and shows specific flood levels in designated locations. In my assessment this allows direct scaling and interpolation of flood levels on individual properties. Reliance on the details shown on this sheet seems to present a more accurate basis for assessment of flood level assessment, in my opinion. This is consistent with the approach adopted by Dr Martens. 56 Accordingly, the next problem concerns the absence of specific flood levels or contours lines at the subject property, which is recognised as an "ill defined area". However, the flood study was based on a number of designated cells. The maps show the cells identified by a number in a circle, together with the centre of the cell designated by a cross, which represents the centroid. The subject land is adjacent to Cell 59 where the designated PMF level is RL 373.2. 57 Within the study report, section B.4 contains an explanation of the modelling results. It includes Table 4.1, which states that the 1% AEP level at Cell 59 is 370.5, which presumably is at the centroid. 58 Dr Martens considered the flooding details listed for the respective centroids and interpolated the flood levels for the "missing area". According to his interpolation, the AEP levels range from RL 372 to RL 373.4, whereby he concludes that the majority of the site is flood liable. I note that it was initially agreed by the engineering experts the relevant 1% AEP level was 373.52. 59 In light of subsequent disagreements between the engineers about the methodology to establish the flood level, particularly as Dr Perrens had not undertaken the interpolation exercise, he was invited to undertake this exercise. In doing so, he questioned the reliability of the levels and likely weir effect of Dampier Street. This exercise resulted in the presentation of exhibit P comprising the following 2 plans based on different assumptions: - Plan B (assumes centroid of Cell 54 is isolated by Dampier Street and acts as a weir; - Plan C (assumes that the centroid of Cell 54 is isolated by Dampier /Jewery Street effectively acting as a weir and causing a head loss. 60 These plans B and C indicate that at certain corner points, the land is below the critical 1:100 year flood level. But this exercise was then focussed on overlaying the interpolated flood level contours onto the spot level plan, as shown in exhibit Q. Dr Perrens marked this plan where the land would be below the 1:100 year level. It shows a significant part of the land is subject to flooding. This is consistent with the overall conclusion of Dr Martens. 61 In my opinion, the assessment of cl 15 of the TLEP requires reference to the TFMS, which includes Sheet 3. I do not accept the applicant's submission that this clause can be satisfied by compliance with the details shown on Figure 2.1. Based on Dr Marten's evidence and the revised flood levels, relative to the Baxter Geo Consulting Pty Ltd survey shown by Dr Perrens in exhibit Q, this confirms that the natural surface of the land is not above the 1:100 year flood level. Therefore the application does not satisfy cl 15 and therefore not permissible. 62 Notwithstanding this, if the applicant's submissions that Figure 2.1 is determinative as compared to the foregoing and preferred approach of Dr Martens, I then accept that cl 15 might otherwise be interpreted, so as to allow the development. I have therefore considered the merits of the following issues. Filling 63 This issue concerns the proposed filling of the site to above the 1:100 year flood and involves approximately 59000 cu .cm and its resultant impact on adjoining properties. Whilst making the site flood free, one of the consequences of this filling is that the existing storage areas and flow paths would be diverted onto the neighbouring properties. The applicant proposes to address this in part by the construction of a 70m long retaining wall to the north of Lot 15 and on the neighbouring high school property. Also the construction of another retaining wall adjacent to the boundary of Lots 16 – 22 Kingsford Smith Drive. 64 Dr Martens expressed concerns that the proposed filling would increase the runoff velocity on the neighbouring rural property to the north and increase the depth of flooding and frequency of nuisance flooding of the industrial properties behind the 70m retaining wall and other retaining wall adjacent to Lots 16 – 22. 65 The engineers agreed that the filling would cause an increase in the velocity of runoff, posing a potential risk of soil erosion on the rural property. Both Dr Perrens and Mr Babister considered the increased velocities would be of a minor nature presenting a likewise minor risk if the land was tilled. 66 But Dr Martens says that the existing flow velocities at the north western corner has been modelled to be in the range of 0.4 – 0.6 m/s, which will be increased by > 0.1m/s. By reference to Landcom's 2004 Soils and Construction Manual for NSW, he says that the maximum velocities for the subject soils should be between 0.2 and 0.4 m/s. Therefore he considers the increase in velocity make the risk unacceptable. Although he agreed this could be remedied by the contraction of buildings B7 and B8 to allow the increased flows to be contained on the subject land. The applicant opposes this course. 67 The other element of the overland flows concerns the potential blocking effect of the extended 70m retaining wall, which is required to restrict flood waters entering the existing industrial lots. However the applicant intends to grade the industrial land behind the retaining wall to a low point, which allows discharge via a piped opening, with "flood flap", into the existing drainage easement through the high school property. As the high school has agreed to this, then the applicant considers this satisfactory and an internal property arrangement that can be made between the owners. 68 The associated component concerns the existing inter – allotment drain along the southern boundary of the property adjacent to Lots 16 – 22. According to the industrial development consents consents, this IAD is sized to collect the 1:5 year storm. As the applicant now proposes to construct a higher retaining wall adjacent to these properties, any overland flows in excess of the 1:5 storm event will be blocked and likely require other on – site storage or transmission arrangements to Dampier Street, so as to avoid regular nuisance flooding. It appears to me that as such existing overflows would generally follow the existing land levels and as they are not concentrated flows, then the blocking impact of the retaining wall should be resolved initially in the interests of orderly development. Contamination 69 This issue arises due to the previous use of the land for agriculture and because of the presence of a stockpile of spoil in the south western corner of the site. It was assessed in an initial contamination report by Hollis. This assessment involved grid sampling of the site by way of 25 samples collected from the top 100mm of the soil stratum. Whilst the volume and extent of the spoil was not determined, Hollis concluded that it was free of any foreign or obvious contamination. 70 The Hollis report stated: A large stockpile of spoil is currently located onsite in the south eastern portion of the site . The spoil stockpile is covered in a variety of exotic plant species and appears to be free of any obvious discoloration, odour or foreign material. Communications with David Stearman of the Kidman Group indicates some of the spoil was already located onsite prior to the purchase of the land by the Kidman group . Mr Stearman has indicated that the spoil was located in several different small stockpiles scattered around the site. Upon acquiring the land in 2004, the Kidman group consolidated the numerous stockpiles of spoil into the large single pile as currently present. Mr Stearman indicated that the spoil appeared to be clean during the consolidation works and possessed no visual or aromatic signs of potential contamination. Since 2004, the spoil stockpile has been subjected to additional spoil being stockpiled. The source of the majority of the additional , spoil was from an earthworks site located on the grounds of the Tamworth Base Hospital. Mr Stearman indicated that the additional spoil stockpiled was also clean in appearance. In order to effectively sample the soil within the stockpile, excavation equipment would be required. The use of excavation equipment would result in destruction of the vegetation growing on the stockpile and . compromise the stability of the spoil stockpile. As the stockpile of spoil currently exists in a stable vegetated state and poses no risk to the surrounding environment, it was considered best practice to leave the stockpile in its current state to prevent any potential erosion or migration of any potential contaminants located within the stockpile… 71 Dr Martens opinion is that the Hollis report is deficient and should not be relied upon because: "(a) Insufficient testing has been undertaken on the site to enable a full and proper assessment of potential site contamination. Sampling densities and depths are not in accordance with the NSW EPAs sampling criteria. (b) An inadequate range of soil contaminant parameters has been assessed. (c) The extent of fill which exists on the site has not been quantified and mapped. On the basis of his assessment, the extent of fill is broader than specified with the likelihood of further land contamination. 72 Dr Martens considers that in light of the potential contamination risk, that a further detailed assessment is required in order that a site decontamination management strategy can be prepared, prior to the approval of any development. 73 Ms Duggan submits that this is unnecessary because the source of the material has been identified as clean fill coming from 'Nazareth House' drainage works and contamination is not a risk. Furthermore that cl 6.11 of DCP 4 initially only requires a 'preliminary site contamination investigation' to be undertaken. If this investigation demonstrates the potential for contamination, then a detailed site contamination investigation would be required. 74 Reference was also made to the provisions of council's Contaminated Land Policy 1999, which details the procedures for a preliminary and in some circumstances, a subsequent more detailed site contamination investigation that is based on the provisions of Managing Land Contamination : Planning Guidelines. The extent of these investigations is stated: Preliminary investigation ; is to be carried out to provide a detailed appraisal of the land history, in addition to a report based on visual inspection and assessment of the site… Detailed investigation ; will be required where the results of the preliminary investigation demonstrate the potential for, or existence of, land contamination that may not be suitable for a proposed use. In some circumstances, a preliminary and detailed site investigation may be combined, where the land is known to contain, or to have potentially contaminating activity. 75 Reference was made to the provisions of SEPP 55, which states: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation… 76 In my assessment, the evidence before the Court does not confirm that there is no potential for contamination. It seems to that the preliminary investigation is deficient in that it has not sampled the stockpile, as stated above, and it relies mainly on the observations of the spoil type by the property owners. In these circumstances, I think it reasonable to rely on Dr Martens opinion that further investigation required before any consent is granted. This is consistent with the provisions of SEPP 55. Servicing infrastructure 77 This issue comprises the following matters that the council identified as unsatisfactory or that insufficient information was provided by the applicant. 78 Sewerage arrangements; This issue was raised on the basis that insufficient information was provided to demonstrate that the site can be adequately serviced. Whilst there is an existing 900mm trunk sewer main traversing the property, it is apparently overloaded and subject to surcharge in some storm events. The applicant acknowledges this in its servicing strategy. 79 Consequently the applicant proposed that sewage from the site be conveyed via gravity reticulation mains to a pump station wet – well. It is to be designed in accordance with the DPW Manual of Practice: Sewage Pumping Station Design and Tamworth Regional Council's Engineering Guidelines for Subdivisions and Development 1993. 80 Having reviewed the concept details for the sewage discharge, which includes a pumping station with 4 hour detention capacity, Dr Martens expressed the following concerns: * Inadequate details have been provided to demonstrate the storage and pumping arrangement will overcome the inadequate main capacity. * The operation of such a temporary sewage storage system has not been demonstrated to be capable of working and resolving the capacity issue of accommodating the increased loads in the council's receiving main. * As the site is on a floodplain and is located within an area of periodically high groundwater tables and perched water (during a flood), these constraints should be adequately addressed before consent is granted, so that any risks associated with receiving environment can be assessed. 81 From this, Dr Martens indicated that it is likely that a significantly greater period of retention (in the order of 24 hours) could be required. In this event a larger facility is likely, which could constrain nearby development on the site. In the circumstances where the site is located within the Taminda – Precinct 6, that is proposed for longer term development, I consider orderly planning considerations would require a higher degree of certainty of provision of this infrastructure than is currently before the Court. 82 Water supply; The water supply servicing strategy was prepared by Hanlon Consulting. It proposes that the water supply be supplied from the extension of the existing network and that based on preliminary assessments of available supply sources from the One Tree Hill and Murroon reservoirs, satisfactory flow rate can be achieved. This source will allow for internal reticulation for the industrial estate and cover fire-fighting requirements. 83 However Dr Martens is dissatisfied with this approach because: - A water demand analysis has not been prepared, that takes into account the likely peak demand on water from the estate in the context of available supply and demand for the adjoining industrial development, including their fire-fighting requirements. - Insufficient information has been provided regarding existing main pressure and capacity at the nearest connection points, to enable determination of whether the site can be adequately serviced from the existing water supply. 84 Taking into account that Dr Martens presented some levels details that cast doubt on the ability to supply adequate water pressure from the available source, I consider it preferable that this uncertainty be resolved prior to any consent being granted. I do however note the evidence of Mr Hanlon that the current practice in the Tamworth area is to generally impose conditions of consent that allow this to be resolved later. However in the circumstances where the site is within Precinct 6, a designated" future industrial area", I think orderly planning considerations require this matter to be more confidently satisfied, so that any risk to existing development is not increased due to reduction in water supply quantity and pressure. 85 Stormwater reticulation and water quality control; The applicant submitted an initial stormwater concept plan comprising; a reticulated drainage system for the new industrial estate, including an on-site detention basin and water quality control devices. The details of this plan were modified during the course of the hearing to provide more details on the alignments of the pipe system and their discharge points into the first flush/detention system and then to the road system. 86 Dr Martens initially expressed concerns about the overall lack of detailing and about the following matters: - The lack of water quality modelling to assess compliance accepted standards and accordingly allow design of appropriate structures. - The water quality management does not clearly identify any management treatments for a range of possible pollutants from the industrial development. 87 From the cross examination of Dr Martens and Mr Hanlon, I consider the details on the stormwater treatment and disposal inadequate because: - The site is in a sensitive location in close proximity to the Peel River floodplain. Therefore reasonable measures are required to ensure any environmental impacts are assessed as acceptable. - The examination raised significant questions about how much fill would be required to achieve acceptable cross-falls on the regraded industrial sites land and consequential available longitudinal gradients for the pipelines. - The proposed cross-fall apparently results in longitudinal gradients in the order of 0.25 – 0.3%, which Dr Martens considers too flat in the circumstances. Whilst Mr Hanlon says this is common practice in the area, I think it essential for the final site levels to be determined and the drainage levels co-ordinated to ensure effectiveness of the system, particularly to ensure that satisfactory outlets work in the flood associated flood plain. - It also seems to me that further consideration is required on the integration of the water control devices with other constraints, This includes the location and size of the various bio-remediation areas, the integration of the underground first flush storage system with the important landscaping on the north eastern corner of the site and the ultimate discharge levels/arrangements into Dampier Street. 88 For these reasons, I rely on Dr Martens evidence and consider the lack of details on these matters is a negative aspect of the proposal. 89 Filling: This issues mainly concerns the external impacts of winning and transporting the estimated 59000 cu m (+ any bulking) of filling. The potential impacts include the location of the source of the material and resulting transport delivery route. However I accept the experts agreement that this issue could be addressed by way of a satisfactory Construction Management Plan (CMP), which could include restrictions on specific roads, time of operations and a pre-dilapidation type clause regarding potential damage to public infrastructure. Likewise such CMP could include any requirements for mitigating risk to the floodplain. Draft LEP 90 As noted previously, the DLEP proposes this land to be zoned as RU4 Rural Small Holdings so as to conform with the standard template format. However, there is the savings clause that allows consideration of this instrument on the basis of an exhibited plan status. Section 2.6C deals with earthworks, whereby the works of the prosed magnitude would likely require development consent and 2.6C (3) lists items that must be considered prior to granting any development consent. 91 Clause 7.5 deals with flood planning areas on the basis of the following objectives: - To maintain existing flood regime and flow conveyance capacity. - To avoid significant adverse impacts upon flooding behaviour. - To avoid significant adverse impacts on the environment that would cause avoidable erosion, siltation … 92 This clause also deals with land subject to the discharge of the 1:100 ARI flood event and restricts granting consent unless the matters listed are satisfied. Insofar as reference is made to a Flood Planning Map, I understand that further flood modelling has been undertaken. This includes a report Hydraulic Modelling: Peel River at Tamworth, prepared by Lyall & Associates (December 2006), which identifies the 1:100 year flood level as 372.83m AHD at the site. 93 It was agreed by the engineers that this study confirms that under the DLEP controls, the subject land is flood liable in the 1:100 year event. In this event I have considered the applicant's position that as the filling will satisfy the flooding issue, consent should be granted. Considering however the draft status of the DLEP, I do not consider it should be given determinative weight. Economic and orderly development 94 This issue was raised by council on the basis that the approval of this development would not be consistent with the strategic planning for the area. The adopted strategy is contained within the Taminda Strategy that was adopted in August 2008 and includes the subject land within Precinct 6. 95 In January 2009 draft LEP 29 was gazetted, which effectively rezoned Precinct 1 – 4 and provided an additional 24 ha of 4(a) General Business zoned land and 12 ha of 3(c) Business Development zoned land. Apparently, an important factor in this gazettal was the prior completion of the Taminda levee project that made these precincts flood free. 96 According to Mr Leathley's evidence, this land release addressed the current and future demand for further industrial land within the Tamworth LGA in line with the strategy. He also says other infrastructure issues including the effect of the rail line, extension of Jewery Street/intersection and other funding matter require resolution prior to this precinct being rezoned. Therefore he concludes: "The development of this site at this point in time is premature, is not in the public interest and presents a direct challenge to the orderly and economic release of land within the broader Taminda locality. The purpose of identifying this precinct within the strategy is to 'provide certainty to the market that a longer term strategy is in place to meet ongoing land demand .' If the land is developed now it would clearly undermine this strategy and be contrary to the objects of the Environmental Planning and Assessment Act, specifically Clause 5(ii)… 97 Against this, Mr Darroch has noted that the Taminda strategy only sees Precinct 6 as a longer term option because of the need to raise money to construct the flood mitigation levee. The proposed development avoids this need by including all the required flood mitigation works on site by relatively minor changes in level. 98 Accordingly, he says that as the proper flood mitigation measures have been investigated and will be implemented as part of the development at no cost to the council or community, then the consent should be granted. Furthermore, he says that the draft LEP 2009 is currently in the process of rezoning the subject land, which would permit the proposed development. Therefore the proposal is consistent with the strategy for approval. 99 Having considered these disparate approaches, it seems to me that the Taminda strategy has involved systematic investigations to assess the future industrial land demand for the area. This has resulted in the subject land being identified for 'longer term' industrial development. It is apparent that much of the development of the industrial land requires the timely provision of infrastructure. Precincts 1 – 4 have required the construction of flood levee banks. 100 However the structured approach of the strategy relies on further detailed investigations of a full transport traffic study, development of a capital works program, financial modelling of the proposed development staging and capital works program and some further detailed master planning. 101 It is apparent from the strategy plan that the future development of the subject and adjoining land would obviously be impacted on by the relatively major flood levee and associated Jewery Street extension. In the circumstances I do not accept Mr Darroch's opinion that the substantial individual filling of lots in lieu off the levee represents economic or orderly planning. The evidence also indicates that resolution of the servicing provisions of detailed (upgraded) sewer provision, water supply arrangements and major road distributor system is required. 102 Under these circumstances, it appears to me that the approval of this development as supported by Mr Darroch would be very much on an ad – hoc basis because there is no proposal to contribute towards the major infrastructure works adjacent to the land, which will largely be required as a result of the industrial development. The subject land represents about one third of the future industrial land in Precinct 6 and I am satisfied that it would be premature to approve the development of this land in advance of the servicing and costing being completed. Otherwise the neighbouring land could expect similar assessment, which may not be in the longer term public interest. Conclusions 103 Having carefully considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. 104 Under the prevailing control of the TLEP 1996, the subject land is zoned 1(c) Flood Liable and the proposed "industry" development is prohibited in this zone. However the provisions of cl 15 otherwise permit such development if the natural ground level is demonstrated to be above the 1:100 flood level as defined in the Tamworth Floodplain Management Study. 105 A considerable amount of discussion took place regarding the application of the TFMS provisions. In the ultimate I do not consider it appropriate to rely on the applicant's approach, which is to primarily rely on Figure 2.1 that shows the subject land not being inundated by the 1% flood, particularly as it does not show any specific levels. 106 Instead, I consider the more realistic approach is that undertaken by Dr Martens. This relies on an accurate determination of the natural ground levels and careful correlation with the estimated 1:100 year flood levels. Sheet 3 of the TFMS facilitates this because it identifies the various flood cells and estimated flood levels at a centroid. Insofar as the subject land is in an ill defined area, I rely on Dr Martens's opinion that it is current practice to interpolate flood levels between the relevant centroids i.e. 54, 59 and 71 in this case. 107 I am satisfied that this is the appropriate method because it depends on the assessment of flooding impacts based on the natural surface levels of the land and estimated flood levels. I consider the provisions in cl 15 requiring a topographical survey from a registered surveyor infer this. There would not be much point in providing such survey if only Figure 2.1 was to be determinative. 108 Consequently, Dr Marten found that applying this approach that the major part of the land is below the 1:100 year flood level. When this approach was applied by Dr Perrens, I am satisfied his results also show that the major part of the land is below the designated flood level. Considering the scale of the subject development, I think it reasonable to assess cl 15 in terms of the flood liability of the whole of the site. 109 Accordingly, I do not consider this application satisfies the permissibility requirements of cl 15 of the TLEP 1996, resulting in its refusal. 110 In this regard I have considered Mr McEwen's submissions in connection with the following authorities dealing with statutory interpretation in a practical and common sense way. In Marina Bay developments Pty Limited v Pittwater Council [2007] NSWLEC 41 Lloyd J said: 18 I find the competing submissions nicely balanced. It must be remembered, however, that the Policy is subordinate legislation and not drafted with the particularity or specificity of a statute: it should not be construed in a strict or over-technical way but rather in a practical, reasonable and commonsense way: Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289 at 294, Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 at 279. 19 It is necessary, therefore, to construe the Policy with the flexible and practical approach to construction adopted by Lord Reid in the House of Lords in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180; [1963] 1 WLR 929, an English building regulation case: I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry … So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament. 20 These comments of Lord Reid have been cited and adopted in applying and interpreting subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531, Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323, GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; Port Stephens Shire Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 231. 111 I also note the following relevant comments of Craig J in Atkins v Maitland City Council [2010] NSWLEC 36, which can be applied in coming to a practical and commonsense interpretation of clause 15, which I consider requires an actual assessment of factual levels: 24 The principles that should govern the interpretation of a planning instrument were not in contest. Emphasis was placed by the respondent on the need to give the LEP and the particular provisions under consideration a purposive interpretation. These principles are well elucidated in authorities such as Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 and Matic v Mid-Western Regional Council (supra). Application of these principles do not detract from my rejection of the Respondent's submissions. As I have earlier indicated, focus must be upon the text of the instrument itself and, subject to what follows, not upon some extraneous material which is unnecessary to give meaning to the language of the LEP itself, even considering its context (Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380). 112 With regard to the other issues if the proposal is otherwise permissible, I note firstly that the development of the land requires a substantial amount of filling (approximately 59000 cu m) in order to provide access to the flood free platforms of the industrial units. This proposed filling is required because the longer term planning envisages a flood levee to protect this and adjoining land from flooding. In the circumstances where the levee is completed, such filling would not be required. Therefore the extent of the proposed filling is not consistent with the Taminda strategy, in my assessment. 113 A consequence of this filling is that the existing overland flows will be diverted. The diverted flows will result in increased velocities along the western boundary of the land, within the adjoining farmland. This increase will likely be impacted on by the concentrated discharge of the proposed pipe, through the 70m retaining wall. 114 Whilst the increase in velocity appears marginal at 0.1 m/s, Dr Martens says nevertheless this is unacceptable because the existing velocity to prevent soil erosion is already exceeded for the subject soil type. I therefore cannot conclude that objective 2(a) of this zone is satisfied because the risk to property is not reduced. Insofar as the applicant declined to address this matter by the deletion or reduction in Unit B7 to contain the overland flows on the subject property, I consider this another negative aspect of the proposal. 115 The other aspect of the filling and overland flows concerns the effect of the proposed retaining wall at the back of the existing lots 15 – 22 Kingsford Smith Drive. These lots currently have the benefit of an inter – allotment drain that is designed to accommodate a 1:5 storm event. It is apparent that in larger storm events there will be general overland flows following the land contours onto the subject land. As the retaining wall will block this flow, I consider this should be resolved initially. The absence of a resolution of this matter is a negative aspect of the proposal in my opinion. 116 Insofar as some filling has been placed on the site, I do not consider this has been adequately assessed to conclude that it is free for contamination, or that it is of minimal significance to not require a detailed assessment. I find it somewhat puzzling that while the site was grid sampled, the stockpile was not tested, even though it is proposed to shift the stockpile in the development. I do not consider the potential contamination risk has been adequately investigated in the preliminary assessment. 117 As I have mentioned previously, this development is proposed in advance of major infrastructure identified in the Taminada strategy. Dr Marten's evidence on the existing overloaded sewer causes me particular concern. This sewer traverses the subject property and is subject to unsatisfactory surcharge in wet periods. Even though a preliminary design concept was submitted, Dr Martens's opinion that a significantly greater period of detention (and corresponding land and structure) is required for this development, should be addressed prior to development consent being granted. 118 Likewise the evidence on the provision of an adequate water supply to the development causes me concern. Insofar as the applicant relies on the current practice of making some arrangements with council by way of conditions of consent, it seems reasonable to me that the availability of adequate water supply should firstly be established. 119 Dr Martens preliminary estimates indicate that the existing water main to the Taminda industrial estate is unlikely to be able to deliver and maintain sufficient water supply, or pressure to maintain safe fire fighting pressures. In the circumstances where this land is designated for 'future development', I think it appropriate that the availability of services such as water supply be determined initially, so other areas are not disadvantaged by some developments "effectively "jumping the queue" for limited services, which may be designated for other existing industrial land. If it was demonstrated that adequate water supply could be provided to this development, representing orderly development of the land, this concern would be addressed but that does not appear to be the case. 120 The remaining issues concern the orderly development of this land. Put in the context that the current controls in the TLEP do not permit industrial development in the 1(c) flood liable zone, I consider it appropriate that due weight be given to the provisions of the Taminda Development Strategy that has been adopted by council. This seems to outline a sequential release of industrial land to meet future demand, balanced against demand and the provision of services. To date Precincts 1 – 4 have been released following the provision of flood levees. 121 The subject land is in Precinct 6, which is designated "as part of a longer term economic strategy economic strategy…" According to the strategy, the proposed development of this land is based on the construction of the major flood levee bank adjacent to the Jewery Street extension, which is major new thoroughfare. As the proposal ignores the levee and new road by filling the land and apparently make no contribution towards this major infrastructure from which it will ultimately benefit, I do not consider this represents orderly development. 122 This is not to say that an appropriate development in Precinct 6 is prohibited. But based on the evidence, including the inadequacy of water supply and lack of certainty with the sewer augmentation into the council system, this indicates to me that the development servicing would be on an ad hoc basis, which is not orderly development, as stated By Dr Martens, on whose opinion I rely. 123 The other important control is the draft LEP 2009 wherein the site is proposed to be rezoned RU4 Rural Small Holdings. Whilst this does not include similar provisions to clause 15 (TLEP), nevertheless there are proposed restrictions on land filling and reference to flooding controls. But there was no evidence to confirm that this instrument was imminent or certain. Therefore the savings clause applies whereby this draft instrument is considered on the basis of an exhibited plan and not given determinative weight. 124 Accordingly, it is apparent that filling of areas is a significant concern where development consent would be required for filling of the magnitude proposed in this matter. Of some relevance is Aim 1.2 (3); (d) to promote ecologically sustainable urban and rural development and control the development of flood land; and RU4 zone objective: + To ensure that development does not unreasonably increase the demand for public services or public facilities. 125 Since the Flood Management Study of 1993, which is the basis for cl 15 of the TLEP, further flood investigations have been undertaken presumably for consideration of the cl 7.5 provisions. Those investigations show that the land is flood liable whereby certain criteria is to be determined prior to any consent. 126 In summary then, I do not consider there are any provisions in the draft LEP which should be given such weight, over the provisions of the TLEP that would result in the conditional approval of this development. Instead it seems to me that the public interest is well served by the refusal of this application because it does not satisfy clause 15 of the TLEP and satisfactory arrangements have not been made for the orderly provision of essential services. There is no demonstrated demand for this industrial land that would warrant the setting aside the provisions of the Taminda strategy. Court orders 127 The orders of the Court are: 1. The appeal is dismissed. 2. Development consent for the filling of the land and construction of 11 industrial units at Lot 23 DP 260129, Dampier Street, Taminda is refused. 3. The exhibits may be returned except 1, 2, 10, 11, 12, 14, A, G and Q. _________________________ R Hussey Commissioner of the Court ljr 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.