Land and Environment Court of New South Wales CITATION : Hadfield v Hawkesbury City Council [2009] NSWLEC 1169 APPLICANT Jennifer Dyson Hadfield PARTIES : RESPONDENT Hawkesbury City Council FILE NUMBER(S) : 10993 of 2008 CORAM: Hoffman AC - Whelan AC KEY ISSUES: DEVELOPMENT APPLICATION :- extracting 100ML of water per-annum for bottling, ecology, threatened species and habitats, sustainability of water supply, and impacts on adjoining Wollemi National Park and World Heritage Area. Environmental Planning and Assessment Act 1979. Sydney Regional Environmental Plan No. 20 (No.2) Hawkesbury Regional Environmental Plan (HREP). LEGISLATION CITED: Hawkesbury Local Environmental Plan 1989 (HLEP). Hawkesbury Development Control Plan 2002 (HDCP) CASES CITED: Ray Fitzpatrick Proprietary Limited v The Minister for Planning [2007] NSWLEC Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No.1) [2008] NSWLEC 154 DATES OF HEARING: 2 April 2009, 3 April 2009, 11 May 2009, 12 May 2009 and 14 May 2009 DATE OF JUDGMENT: 29 May 2009 APPLICANT Mr N O'Gorman-Hughes (Barrister) LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton (Solicitor) SOLICITORS Marsden Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman AC Whelan Ac 29 May 2009 10993 of 2008 Jennifer Dyson Hadfield v Hawkesbury City Council JUDGMENT Background 1 This is application to the Land and Environment Court following a refusal by Hawkesbury City Council to a development application pursuant to Section 79 c (1) of the Environmental Planning and Assessment Act. 2 The land is identified as No.27 and separately No.320 Mount Tootie Road Bilpin NSW. The owner lodged a Development Application no.DA0033/07 on 19 June 2007. The proposal was that the construction of a 100,000 litre static water tank, on Lot 7 DP 247457. It was proposed that water would be provided to the NSW Rural Fire Services for exclusive use in the event of a bushfire. Secondly the application sought approval for the installation and operation of a groundwater bore on Lot 11 DP751628 for the purpose of extracting water for bottling and sale. The extraction rate proposed is 100 megalitres per year. In addition the proposal contemplated the construction of a shed and three (3) 100,000 litres water storage tanks on lot 11. 3 During the assessment period Council sought advise from the Commonwealth Department of Environment and Climate Control (DECC). They responded in these terms. "In summary, based on the information received and as noted above the DECC has significant concerns with the potential adverse impacts of proposal in a number of areas. These include potential for: o impacts on base flows to creeks within the national parks in the World Heritage Area and flow on impacts of the broader catchments and significant rivers. o impacts on aquatic and the terrestrial groundwater dependent ecosystems and the flora and fauna species that is reliant on groundwater to varying degrees. o impacts on threatened species, populations and ecological communities and their habitat. o impacts on truck movements on the environmental and recreational values of the Wollemi Wilderness. o Overall impact of the proposal on the Greater Blue Mountains World Heritage Area. 4 As far as DECC can observe, these impacts have not been quantified or assessed in any meaningful or specific way by the DA documentation." Locality 5 The general locality is described as having a rural and rural/residential uses adjoined by bush-land within the Wollemi National Park. Lot 11 is located such that Crown land abuts this property to the immediate north, east and south. The land to the west, being known as "Itchenstoke", is currently in private ownership and used for the grazing of cattle. Lot 11 has right of way access over Itchenstoke from the public road. 6 The Crown Land referred to adjoins the Wollemi National Park. The land to the western side of Itchenstoke is also classified as Wollomni National Park. 7 Lot 7 has a frontage to Mount Tootie Road and is located closer to Bells Line of Road than Lot 11. This property is surrounded by rural residential development. The Wollemi National Park adjoins on the northern boundary of Lot 7. Itchenstoke actually sits on top of Mt Tootie with the national parks and Crown Land all around it. Mt Tootie Road passes through national park land to get to it and the site.. Statutory controls o Environmental Planning and Assessment Act 1979 o Sydney Regional Environmental Plan No. 20 (SREP) o Hawkesbury Nepean River Environmental Plan. o Hawkesbury Local Environmental Plan 1989 (HLEP). o Hawkesbury Development Control Plan 2002 (HDCP). 8 Lot 11 is zoned Environmental Protection-Mixed Agriculture (Scenic) under the provisions of the Hawkesbury Local Environmental Plan 1989. 9 Lot 7 is zoned Environmental Protection (Scenic) under the provisions of HLEP 1989. Application process 10 Upon receipt of the Application Council notified the adjoining owners, in accordance with their procedures under the HDCP. During the notification period they received nine (9) submissions from seven (7) individuals objecting to the development. 11 The proponents sought approval for an integrated development pursuant to Section 91 of the EP&A Act. Council forwarded a copy of the application to the Department of Water and Energy for their approval under Section 10 (Applications for Licenses) of the Water Act 1912. That Department subsequently advised the Council in these terms:- o "…..further information on the proposed mineral water development is required, specifically with regard to the Flora and Fauna study and the groundwater dependent ecosystems impacts of the proposal. This aspect of the proposal will need to be scrutinized in detail, specifically because of the location of and setting of the property surrounded by National Park. Note that any assessment of impacts on sensitive environmental areas may require the services of Council's environmental officers or specialist environmental consultants. 12 The Department also noted that further information as required by them of the applicant had not been provided following requests. 13 The Development Application, No. DA 0033/07 was considered by Councils Development Assessment Panel on 27 September 2007. It was resolved to refuse the application under Section 79C of the EP&A Act 1979. A notice of determination was issued on 10 October 2007 providing reasons for the refusal. Council provided the Applicant with detailed "Particulars" as to refusal; a summary of which is:- o "… the groundwater extraction activity is considered to constitute an extractive industry and as such is prohibited under the HLEP 1989 o …. the proposal is inconsistent with the zoning objectives of the HLEP in that there is potential for a general loss of water in the locality, with consequential adverse impact on the water catchments, including surface and groundwater quality and flows, land service conditions and important ecosystems such as streams and wetlands. o ….. it is appropriate in this instance to apply the precautionary principle having regard to the principles of ecologically sustainable development given the significant conservation values of the area and potential adverse environmental impact of extraction of the groundwater resource upon groundwater dependent ecosystems. o …… the proposal is not considered to be in the public interest. o …... the development application contains insufficient information to carry out an adequate assessment of the likely impact of the proposed development having regard to the provisions of the EP&A Act 1979 in respect of the following:- (a) the information required by the Department of Water and Energy has not been provided (b) a detailed Flora and Fauna report has not been provided. " 14 The matter was the subject of a Section 34 Conference, conducted by Commissioner Bly, held on 29 January 2009 on site. No agreement was reached and the Conference was terminated. 15 The matter was listed for a Hearing which commenced with an on-site view on 3 April 2008. The Applicant was self represented. Neighbors from numbers 17, 42 and 62 Mt Tootie Road were either in attendance or provided their objection to the Council regarding the proposed development. The "Glow Group Inc." objected to the proposal on the basis of sustainability of extraction of water from the aquifer and the impact on endangered ecological communities. Representatives of the owners of "Itchenstoke" objected to the proposal on a number of grounds including noise and traffic impact. The Blue Mountains Conservation Society Inc. also objected to the proposal. A representative of the National Parks & Wildlife Service (NPWS) indicated that their organization did not see any benefit from the provision of the proposed water reservoir on Lot 7, as the NPWS used local streams and ponds closer to any bushfire for a quick response and in some cases helicopters. This was due to the inaccessibility of the terrain for vehicles. No representative was present from the Rural Fire Services (RFS). 16 Mr. Hallam traffic engineer was present at the view and gave his opinion on traffic issues relative to any impact on the existing internal road system and Bells Line of Road. The applicant did not have a traffic expert present and indicated that she was satisfied with the report prepared by Mr. Hallam. 17 The matter was reconvened to the Court. Parties gave a brief outline of the main issues and submissions were received. Mr. Seton for the respondent objected to the tender of a report by Mr. Lee geoscientist, on the grounds that it was not admissible as Mr. Lee had not read or agreed to be bound by the Code of Conduct for Experts. In support of the submission Mr. Seton cited Ray Fitzpatrick Proprietary Limited v The Minister for Planning [2007] NSWLEC. Mr. Lee in cross examination admitted that he had not received any documentation from the Applicant prior to being engaged or any written instructions. He had not read the Uniform Civil Procedure Rules 2005 or the code within Schedule 7. He did admit that he had read an expert witness code several years prior to this hearing. The Court considered the issue taking into account the case law and the evidence given by Mr. Lee and decided that the report was inadmissible. 18 During the hearing the Applicant requested an adjournment due to ill-health. The Respondent made no objection. The matter was adjourned to a date to be fixed. The matter was reconvened on 11 May 2009 with Mr. N O'Gorman-Hughes, Barrister appearing for the Applicant. 19 The Respondent provided the balance of opening statements. Mr. O'Gorman-Hughes tended a new report from Mr. Lee dated 5 May 2009. This tender was objected to by the Respondent. Mr. Lee was subjected to cross-examination. He admitted that whilst his client had not referred to the code of conduct when he was engaged he did recall that in another matter, being given a copy of the code from a barrister and was familiar with the requirements. He stated that he had told his client at the initial stage that he understood the code and would be the expert of the Court and not an advocate for the applicant even though engaged by the applicant. 20 Counsel for the applicant tendered extracts from the Supreme Court Rules 1970 and the Uniform Civil Procedure Rules 2005 and cited Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No.1) [2008] NSWLEC 154 pointing out that the test in this case was whether Mr. Lee was aware of the substantive obligation in the code and accepted those obligations at the time he prepared his report. It was contended that on his oral evidence Mr. Lee satisfied the test in that he did understand the central obligation in the code and the paramount duty to the Court rather than to his client. The Court considered the matter and decided to admit Mr. Lee's report. The issues 21 A summary of the main issues as derived from the evidence is:- o The impact associated with the proposal to construct a 100,000 litre static water tank on Lot 7. o The environmental impact associated with the construction, installation and operation of a groundwater bore for the purpose of extracting 100ML per annum of water for bottling and sale on Lot 11. o The impact on the adjoining National Park. o The lack of certainly associated with the failure of the Applicant to address all the necessary statutory requirements associated with the initial Application. Evidence 22 The respondent's evidence was heard from Mr. C. Jewell Hydrogeologist, Mr. R. Wellington Ecologist and Mr. B Towle Ecologist. 23 The applicant's evidence was heard from Mr. Lee. 24 The applicant lodged a combined Lot 7 and Lot 11 Application. The sites are some distant apart. Whilst the Applicant offers to construct a 100,000 litre static water tank on Lot 7 there is no evidence that the RFS is in need of this facility even though their representative indicated no objection to the offer. The Council's view is that in any event the use may be described as Exempt Development and accordingly does not require a Development Application to Council. Therefore no issue was remaining regarding that part of the application. However the proposed tank was dependant on the water proposed to be extracted from the bore on Lot 11. 25 Issues related to Lot 11 are more complex and the evidence of the Experts assisted the Court. Hydrogeology 26 Mr. Jewell, Bachelor of Science in Geology and a Master of Science Hydrogeology prepared a report for the Respondent (Exhibit 2). He noted that two boreholes have already been constructed on site, each of which intersects the aquifer zone within the Hawkesbury Sandstone. It is proposed to pump 100 ML of groundwater per year from one of these boreholes. The water will be placed in containers on the site, transported from the site by truck and sold as mineral water. The respondent noted this volume is approximately 166 Million small bottles of water per annum. 27 The Hydro geological setting is described as Triassic-age Hawkesbury Sandstone underlies the site and surrounding area. Parts of the Hawkesbury Sandstone form aquifers that store and transmit groundwater. Under natural conditions, the small fraction of rainfall that does not evaporate or form surface run-off and is not utilised by vegetation, infiltrates through the ground surface. It percolates down to the aquifer and flows laterally, eventually discharging to the surface where the aquifer intersects the topographic surface on valley sides or within one or other of the local creek systems. 28 In this case the aquifer starts high up on the west side of Mt Tottie, passes eastwards under the mountain and discharge low on the east side of Mt Tootie. 29 Another potential issue, raised by Mr. Jewell is that is that natural groundwater flows sustain native vegetation within the National Park and provide base flow to the local creek systems. If the boreholes intercept these groundwater flows, then native vegetation and creek flows will be adversely impacted. 30 He provides detailed assessment of the Hydrogeological conditions, the strata and indicates that the formations contain shales interbeded with sandstone. These shale beds strongly inhibit vertical groundwater flow. He is of the opinion that the proposed development should be refused as it has the potential to result in adverse environmental impacts having regard to the adjoining areas of high ecological value. The groundwater extraction will impact on the Wollomni National Park and no allocation of groundwater for commercial use is appropriate at this site. 31 Mr. Lee, geoscientist undertook a geological investigation (Exhibit E), prior to the lodgment of the Development Application. His investigation followed the sinking of a monitoring bore and the extraction bore, having first obtained the appropriate License. His proposal was to apply to convert the downhill bore to a production bore and the first uphill bore to be converted to a groundwater monitoring bore. The plan was to support an extraction rate of 100ML of groundwater for "mineral water extraction" with an additional allocation for stock and domestic use and firefighting purposes. He concluded that the site has significant groundwater potential, and that the production bore has the capacity to produce a high-quality mineral water, without any recognised impacts on the groundwater table, the environment or other groundwater users. 32 M. Lee further contends that there are no observed features in the area which define the existence of sensitive ecosystems, dependent on the groundwater. In cross-examination it was shown that the area he surveyed, to come to this conclusion, was that part of Lot 11 that had been previously cleared for agriculture and in which the dwelling, the two bores and the proposed extraction plant and tanks are proposed. 33 He concluded from the testing that the water quality is: "excellent, characterised by low total salinity and negligible iron and manganese concentrations. The water has good taste, and is appropriate for the desired purpose for mineral water sales. The proposed abstraction of water from the site is not expected to cause any impacts on the environment nor other users". 34 He also states that "Subject to joint Council and DNR (Department of Natural Resources) approval, we recommend that the commercial license be granted. 35 Mr. Jewell provided evidence in the reply, having reviewed the Hydroilex report. He considered the requested allocation of 100ML per annum represented over 75% of the available resource. He also provided additional information on the recharge capacity in reference to "rainfall factor". A significant difference exists between the two experts in regard to what is to the appropriate recharge factor and the area on the west side of Mt Tootie that provides catchment for the aquifer. According to Mr. Jewell the 10% recharge factor adopted in the Hydroilex report is not realistic and a factor of 3% of total rainfall is preferred. 36 Mr. Jewell and Mr. Lee gave concurrent evidence. Differences occurred between the experts and they were asked to meet and prepare a Joint Report. Relevant was agreement on some issues. However the parties could not agree on a number of important matters including the recharge factor. The recharge factor is the percentage of rainfall at the top end of the aquifer that enters the aquifer and is stored. Mr. Jewell and Mr. Lee could not agree on the area of land at the top end of the aquifer that would provide the volume of water for recharge of the aquifer. Ecological 37 The Applicant did not provide an expert submitting that Mr. Lee had made certain statements on "ecological" issues in the Hydroilex report. Professor Adams for the Applicant was brought to the hearing; his expert advice was not allowed in evidence as it arrived at this late stage in the proceedings. However on the request of the Applicant he was given permission to respond to issues via the Applicants Counsel. 38 Both Mr. Wellington and Mr. Towle had conducted a limited field inspection of the aquifer recharge areas uphill and the aquifer discharge area in the Wollemi National Park and in the vicinity of Mt. Tootie that feeds Tootie Creek. 39 Mr. R Wellington made these statements: o the site has high conservation values and is in a locality where the adjoining land is World Heritage listed, Wilderness classified, National Park. There is a high risk that the extraction of 100 ML of water per annum from the aquifer will significantly impact on the hanging swamp wetlands and ground water dependent wet heaths and important and associated ecosystems including Endangered Ecological Communities and threatened species habitats. o DECC has the responsibility for the protection and care of native fauna, flora and Aboriginal sites. No flora and fauna assessment was provided with the DA and consequently a detailed EIS should be undertaken that assesses the full direct impact as well as the indirect impacts arising from the proposed development. The DA is not complete until such time as this information is provided. o a desktop assessment of threatened fauna database records indicates that 16 threatened fauna species have been recorded within a 5 km radius of a subject land. 40 Mr. Towle made these statements: o there are a number of potential Groundwater Dependent Ecosystems (GDEs) within the areas adjoining lot 11 which are associated with groundwater from various geological units. Changes to the level, timing, duration or other properties of the groundwater regime have the potential to adversely impact upon these terrestrial ecosystems. o the impact of the proposal upon the threatened species and communities listed under the Threatened Species Conservation Act has not been considered in relation to section 5A of the Environmental Planning and Assessment Act 1979. Furthermore the impact on Matters of National Environmental Significance has not been addressed. o portions of native vegetation exist within and around the cleared area within lot 11. These stands of trees represent endangered ecological communities and constitute critically endangered communities such as "Turpentine- Ironbark Forest" in the Sydney Basin Bioregion, listed under the Environment Protection Biodiversity Conservation Act. 41 Mr. Wellington and Mr. Towle gave concurrent evidence: When asked to indicate the extent of the area needed for investigation. Mr. Wellington scribed a green line upon the Lands Department Topographical Map and Mr. Towle scribed a blue line. These combined areas include a large proportion of lot 11 and a significant amount of the adjoining Wollemi National Park and Crown lands on the east side of Mt Tootie. 42 Within that area the two experts had only done a limited inspection along Tootie Creek and the only information on the overall area requiring inspection is aerial photos. 43 In response to a question that in ecological terms the proposal "does not have significant impact", Mr. Wellington responded that he "still has serious concerns about the environmental impact and in this respect Professor Adams and I are in agreement." 44 Mr. Wellington and Mr. Towle had each observed endangered species and sensitive ecological areas during their field inspection. Mr. Wellington indicated that in his view two threatened species of frog located in the Tootie Creek area and two threatened species of fish, being protected species, are in danger of becoming extinct as a result of the potential negative effect within the discharge and downstream area. Without stream monitoring the impact of extracting 100 million litres of water each year from Tootie Creek could not be fully assessed. At least one species of endangered frog as observed, required constant water or at least permanent ponds over a period of twelve months for its breeding cycle. 45 Mr. O'Gorman-Hughes summed up the case for the Applicant and Mr. Seton the Respondent. 46 The Applicant, J D Hadfield was granted permission to make closing remarks from the floor of the Court. Conclusion 47 Having undertaken a view, considered the evidence and the submissions our conclusions on the issues is as follows:- 48 During the hearing reference was made by Mr Towle to the Traffic Report prepared by Mr. Hallam. He expressed the view that the proposed construction of passing bays along the unsealed Mt. Tootie Road had the potential to have an adverse environmental affect on the flora and fauna below the road. This matter had not been the subject of investigation by the applicant. 49 The environmental impact of the proposal on the land adjoining the site and in particular the Wollomi National Park is the main issue for consideration. It appears from the evidence of Mr. Lee that he was engaged to determine the location and possible extraction rate to satisfy the operation of a proposed bottling plant. This he did, however when it comes to the environmental impact, his response is that there will be no "recognized" impacts on the groundwater table, the environment or other groundwater users. He also concludes that there are "no observed" features in the area which define the existence of sensitive ecosystems, dependent on the groundwater. 50 Clearly Mr. Lee failed to understand the environmental impact in light of the evidence given by Mr. Jewell, Mr. Wellington and Mr. Towle. Had Mr. Lee done so he would have observed and recognized the potential impact of the proposal upon the threatened species and communities listed under the Threatened Species Conservation Act. He would have also realized that the extraction of 100 ML of water per annum from the aquifer had the potential to have significant environmental impacts. The area required for survey and report has not been investigated and may well contain hanging swamp wetlands and ground water dependent wet heaths and important and associated ecosystems including Endangered Ecological Communities and threatened species habitats. This is the conclusion reached by the respondents experts. Their evidence is preferred. 51 The parties were encouraged to prepare "draft conditions of consent". They did so, the result of which amounted to drafting a deferred commencement consent. Such arrangement stills requires the applicant to produce answers to the questions raised by DECC and other consent authorities. The problem of allowing commencement even on a limited extraction basis is that the very damage to be avoided may still occur and would be testament to approval of the experiment. We agree with Council's approach which is to do the complete investigation at the start in accordance with the requirements of all Statutory Authorities. 52 Hawkesbury City Council made it clear to the applicant from the outset and before they assessed the proposal in full that DECC conditions would need to be satisfied. This was not done. The applicant was given detailed reasons for the refusal and the opportunity to provide the required information. Again they failed to undertake the additional research and provide the appropriate reports. 53 The Court in assessing the proposal is put in the same position as Hawkesbury City Council. The appeal can only be based on the facts and merits of the proposal. 54 The Applicant has failed to provide the necessary information to the Council and in so doing creates a lack of certainly about the proposal. There are so many issues yet to be investigated that the Court is left in a position where it has insufficient information upon which a determination can be made. Accordingly we have no alternative than to refuse consent. Court Orders 1. The Appeal is dismissed. 2. The Exhibits with the exception of Exhibits 1, 2 and 4 are returned. ___________________ ___________________ K G Hoffman M C Whelan Acting Commissioner of the Court Acting 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.