Land and Environment Court New South Wales Medium Neutral Citation: Cardiff Holdings Pty Ltd v Singleton Council [2018] NSWLEC 1335 Hearing dates: 27 June 2017 Date of orders: 13 July 2018 Decision date: 13 July 2018 Jurisdiction: Class 1 Before: Bish C Decision: Orders at [53] Catchwords: CONSENT ORDERS: service station with ancillary shops; flood hazard; traffic safety on classified road; sewer pump station. Legislation Cited: Environmental Planning and Assessment Act 1979 No. 203 Land and Environment Court Act 1979 Local Government Act 1993 Roads Act 1993 Singleton Local Environmental Plan 2013 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 33 - Hazardous and Offensive Development State Environmental Planning Policy No 55 - Remediation of Land State Environmental Planning Policy No 64 - Advertising and Signage Water Management Act 2000 Cases Cited: Macdonald v Mosman Municipal Council NSWLEC 215 Nash Bros Builders Pty Ltd v Riverina Water County Council NSWCA 225 [2016] Texts Cited: Floodplain Development Manual (2005) Singleton Floodplain Risk Management Study (2011) Singleton Floodplain Risk Management Plan (2012) Category: Principal judgment Parties: Cardiff Holdings Pty Ltd (Applicant) Singleton Council (Respondent) Representation: Counsel: C Ireland (Applicant) Solicitors: Coutts Mallik Rees Lawyers (Applicant) Local Government Legal (Respondent) File Number(s): 2017/279886 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) DA 199/2016 by Singleton Council (the Council) that relates to a highway service centre, including take away food and drink premises, and two ancillary shops (known as tenancies 1 and 2) within Lot 1 DP 85119, Lot 10 DP 1032989 and Lot 61 DP 1040979, also known as 1, 3 and 5 Bridgman Road, Dunolly (hereafter the site). Background 1. Following a number of pre-lodgement meetings between the Applicant and Council, the DA was lodged on 11 October 2016. The DA was notified to adjoining property owners, with a total of 20 submissions subsequently received. 2. Following the provision of additional information from the Applicant relating to flooding and traffic, the DA was re-notified to residents, with nine submissions received. Issues raised by objectors included: pedestrian safety and impacts to highway flow; flooding; visual and noise impacts; and permissibility. 3. An application for concurrence to Roads and Maritime Services (RMS) was responded to positively on 30 March 2017, although set out requirements for: * amendments to the driveway access design to increase separation between truck entry and access off New England Highway and from Newton Street; and * signage consistent with State Environmental Planning Policy No 64, specifically cl 18. 1. On 10 April 2017 Council refused the DA, pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 on the basis of: the site's high flood hazard; inconsistency with zone objectives; traffic impacts; and inconsistent with the Community Strategic Plan. 2. The DA appeal was commenced as a conciliation conference on 7 February 2018, pursuant to s34 the Land and Environment Court Act 1979 (LEC Act), which was terminated, pursuant to s 34(4) as the contentions could not be resolved without further information related to flooding and traffic. In addition the requirements of Roads and Maritime Services (RMS) for concurrence, specifically a deceleration lane on the New England Highway and appropriate entry/exit signage, had not been addressed. 3. Prior to the hearing, as a result of the provision of additional information, the following contentions were resolved to the satisfaction of both parties: 1. Traffic – in response to RMS requirements, a revised traffic report with amended swept path plans including a deceleration lane from New England Highway, and entry/exit management signage; 2. Flooding – in response to s34 conciliation discussions, a review of flood modelling and a modified evacuation plan, flood risk management study and risk management plan. 1. Also prior to the hearing, the parties prepared draft conditions of consent, as provided in Exhibit 3. The draft conditions were amended following the hearing and leave is granted to rely on these conditions. 2. The parties contend that with the provision of additional information together with the proposed conditions of consent, the contentions raised by Council and the residents can all be resolved. Therefore the parties are able to enter into consent orders. 3. At the hearing, the parties agreed that: except those described in paragraph 11 below, all draft conditions including previously objected to 8, 19, 59 and 62 have been agreed; and that conditions 32 and 39 can be resolved by further agreed alternative wording to be provided in amended draft conditions. 4. In the hearing, the parties requested the Court to resolve to its satisfaction the following draft conditions as described in Exhibit 3 in order to enable the parties to enter into Consent Orders in resolution of this appeal: * Condition 6 – Headworks Charges * Condition 7 – Consolidation of Lots, and * Condition 8A – Restriction on 88B 1. At the hearing, the parties agreed that the site will operate on a 24 hour, 7 day a week basis, and it was agreed that the assessments for noise, risk and flood management planning were based on this assumption. 2. Leave is granted to rely on amended traffic swept path plans, CO1, CO2 and CO2A, dated 16 February 2018. 3. Leave is granted for the Applicant to provide a bundle of the relevant plans that are referenced in the conditions of consent. The site and locality 1. The site consists of three (3) lots, with Lot 10 DP 1032989 and Lot 61 DP 1040979 having frontage to Bridgman Road, and Lot 1 DP 851159 having frontage to the New England Highway. 2. The Lots fronting Bridgman Road each have an existing residential dwelling with access to water and sewer services. 3. The total area of the site is 8374.8 m2 on relatively flat ground that drains towards the Hunter River. The site forms part of the Hunter River floodplain, and is surrounded by rural/agricultural properties to the north and east, and residential development to the west and south. 4. Lot 1 DP 851159 abuts along its western boundary, a Council Reserve known as Newton Street, on which is located a sewer pump station. This Lot has a current restriction on title limiting direct access from the New England Highway along Newton Street, other than by Council to service the pump station. Planning controls 1. The proposed development, pursuant to Sections 1.5(3)(b)(vi) and 4.2 of the Environmental Planning and Assessment Act 1979 (EP&A Act 1979), is deemed an integrated development that requires development consent. 2. An application for a certificate of compliance to access water and sewer on the site is required pursuant to s 305 and s 306 of the Water Management Act 2000 (WMA 2000). 3. Council exercises its function as water supply authority, pursuant to s 64 of the Local Government Act 1993 (LGA Act 1993). 4. The site is located adjacent to and requires access from the New England Highway, which is a classified road, pursuant to s 47 of the Roads Act 1993. Works associated with a public road require concurrence from RMS and an approval pursuant to s 138 as follows. 138 Works and Structures (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. 1. Due to the location of the site on a floodplain adjacent to a major highway and the nature of the proposed development as a service station, the following State Environmental Planning Policies (SEPP) are relevant in assessment of the development: 1. Service station operation 1. SEPP No. 33 – Hazardous and Offensive Development 2. SEPP No. 55 – Remediation of Land 1. Classified road access 1. SEPP (Infrastructure) 2007, clauses 101 and 104, and Schedule 3 2. SEPP No. 64 – Advertising and Signage, clause 18 1. The site is zoned RU1 Primary Production according to the Land Use Map of the Singleton Local Environmental Plan 2013 (SLEP 2013), and the development of a service station as a dominant activity is permissible in the zone. In assessing the development, the consent authority must have regard to, pursuant to cl 2.3, the zone objectives as follows: 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan. Notes. 1 Schedule 1 sets out additional permitted uses for particular land. Zone RU1 Primary Production 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. 2 Permitted without consent Extensive agriculture; Forestry; Home occupations; Intensive plant agriculture 3 Permitted with consent Agriculture; Airstrips; Animal boarding or training establishments; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Dual occupancies; Dwelling houses; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Hazardous industries; Heavy industrial storage establishments; Helipads; Highway service centres; Home-based child care; Home businesses; Home industries; Information and education facilities; Intensive livestock agriculture; Jetties; Moorings; Offensive industries; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (outdoor); Roads; Roadside stalls; Rural industries; Rural workers' dwellings; Service stations; Sewerage systems; Truck depots; Turf farming; Veterinary hospitals; Water supply systems 1. The site is located in a 'Flood Planning Area' as designated in Sheet FLD_015A of the SLEP 2013, and therefore the consent authority must be satisfied of cl 7.2 as follows: 7.2 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to: (a) land identified as "Flood planning area" on the Flood Planning Map, and (b) other land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause and clause 7.3 has the same meaning as it has in the Floodplain Development Manual, unless it is otherwise defined in this clause. 1. The development is subject to the relevant controls of the Singleton Development Control Plan 2014 (SDCP 2014). No contentions are raised with regards to the SDCP 2014. 2. The site is designated as being within a high hazard floodway in the Singleton Floodplain Risk Management Study (2011) and Singleton Floodplain Risk Management Plan (2012), which suggests the site is 'unsuitable for residential, commercial and industrial development'. 3. The management of development, such as that proposed at the site, on flood prone land is considered under the Council's Floodplain Development Manual (2005), which defines a high hazard flood, as causing 'possible danger to personal safety; evacuation of truck difficult; able bodied adults would have difficulty in wading to safety; potential for significant structural damage to buildings'. Evidence 1. The hearing commenced onsite whereby evidence was heard from five residents, on behalf of themselves and neighbours, with issues raised relating to (and described in Exhibit 6): visual amenity; lighting impacts to residents; noise; flood hazard and likelihood of appropriate response; offsite environmental impacts to agricultural land; traffic congestion; and pedestrian safety. 2. The parties agreed that the previous objection by Council to the operation of the site as a 24 hour, 7 day a week operation was resolved, and that this addressed the concern raised by residents that a flood event occurring at night would not be attended to according to the agreed flood management and evacuation plans. 3. The parties acknowledged that the longer operational hours could result in adverse amenity for nearby residents due to night lighting, which may be mitigated by ensuring lights are appropriately oriented and potential glare softened with landscaping. 4. The parties agreed that the review of the flood modelling which supports the flood management plan and flood risk management study, and an updated of the flood evacuation plan mitigate the risk to human and environmental health from the proposed development. 5. The parties understand that the time period between when the evacuation order is given by State Emergency Services (SES) and arrival of flood waters at the site, estimated at 7 hours, gives sufficient warning to affect the shutdown and lockdown procedure of the site. Also that the proposed design for weighting the underground storage tanks, storage height of flammable materials and bowsers surrounded by 1.5 m bollards provides sufficient protection in the event of a peak flow event of >2 m height at the site. 6. The parties and their experts accept the preliminary hazard analysis undertaken to comply with cl 12 of SEPP No 33, which deems the societal risk as negligible and that the position of the site satisfies SEPP No 33 guidelines, due to proposed separation distances. The SEPP 33 report also notes that there is no likely impact to the sewer pump station and should development on the adjacent property (Lot 2 DP 1048300) be undertaken, a fire wall on the site may be required. 7. The parties agree that the removal of the restriction to access from Newton Street is required to allow the proposed development to function at the site. The parties also agreed that the removal of the access restriction together with the proposed site design will not impede the operation and maintenance of the sewer pump station. 8. The parties agree that the proposed deceleration lane and signage to restrict access and the entry direction from both New England Highway and Bridgman Road satisfy the requirements of RMS, and provide for traffic and pedestrian safety. 9. The discussion and evidence with respect to the contested draft conditions is as follows: 1. Condition 6 – Headworks Charges 1. Mr Ireland objected to the inclusion and calculation of this condition on the basis that the method of calculation was not transparent and that the requirement for apportioning 'headworks charges', pursuant to s 64 of the LGA Act 1993, was not legally appropriate under an approval issued pursuant to the EP & A Act 1979. 2. Mr Ireland contends that due to the presence of existing water and sewer infrastructure associated with the dwellings currently on the site, the Applicant does not need to make a connection for the development during construction, which is only required at the operational stage. Therefore, a certificate of compliance for these services will not be needed until the occupation stage of the development and could be applied for then. 3. Mr Pickup conceded that the charges described in condition (6) are made pursuant the LGA Act 1993 and not a requirement under the EP&A Act 1979. However, he considers the condition is necessary as Council is concerned that the Applicant would be put in a difficult position to seek a compliance certificate (from Council as consent authority) to connect to water and sewer services at the occupation stage. 1. Condition 7 – Consolidation of Lots 1. Mr Ireland contends that the condition as proposed does not add any value to the development, is not required in the development application, and is therefore not applied for a planning purpose. To require the consolidation of lots would be unreasonable. 2. Mr Pickup responded that the consolidation of lots was required to ensure that the tenancies 1 and 2 remain as a functioning an ancillary component of the dominant and permissible activity, the service station. He noted that the shops are not singularly 'permissible' in the zone without being attached to a permissible activity. 1. Condition 8A - Restriction on 88B 1. Mr Ireland considers the registration of a restriction on use is not legally sound under the EP&A Act 1979 and it is unreasonable as it serves no planning purpose. He suggests removing the reference to restriction on use under the Conveyancing Act 1919 and that Council is 'sole authority'. 2. Mr Pickup considers that the use of tenancies 1 and 2 should be restricted to ensure they remain 'ancillary' to the service station development. He prefers the current wording of the condition as it provides clarity to future owners on how the site can function. Conclusion and findings 1. I accept the evidence of the experts and planners that the contentions of traffic and flooding have been resolved. I do however note that the SEPP33 report is somewhat generous with its assessment of the consequence of some hazards, however this is unlikely to render the overall development unsuitable in its location and change the overall risk assessment. It does therefore rely on effective implementation of conditions of consent and flood management plans. 2. The Traffic and Pedestrian Management Plan, required in draft condition 23, specifically seeks to ensure traffic and pedestrian safety and therefore resolves the issues raised by the residents and Council, and satisfies the requirements of RMS. 3. I agree that the proposed development with relevant draft conditions of consent (specifically, although not limited to, 19, 28, 29, 33, 34, 35, 36, 42 and 43) seek to protect human and environmental health, and satisfy cl 7.3(3) of the SLEP 2013. 4. The objectives provided in cl 7.2(1) of the SLEP 2013 have also been met. I observe that in achieving these objectives and also cl 7.3(3), there is considerable reliance placed on the flood evacuation and management plans (Flood Risk Management Strategy and Flood Emergency Response Plan). These plans seek to improve the 'suitability' of the development on the site based on being in a 'high hazard floodway' and subject to 'high hazard flooding'. It is worthy of comment that if the plans are not properly implemented, this could have serious consequences on both human and environmental health. It must be recognised that to effectively resolve the issues raised (by residents and Council) that relate to protecting human and environmental health and to ensure the cl 7.2 objectives of the SLEP 2013 are satisfied, the Applicant must ensure that the proper procedures are put in place and adhered to in the operation of the development. 5. Based on the assessment of the service station being the dominant activity at the site and the shops ancillary to this activity, the development is consistent with the objectives of the zone and satisfies cl 2.3 of the SLEP 2013. The proposed conditions of consent that seek to minimise environmental impact, satisfy compatibility of the development with other uses in the zone. I find the prevention of offsite groundwater pollution and vapour control essential to achieving this outcome, and therefore place considerable reliance on effective installation of groundwater monitoring wells and vapour recovery systems. 6. The parties agree that the Council is the water supply authority for the purposes of complying with s 305 and 306 of the WMA 2000, and that the headworks charges relate to water and sewer works to be assessed under s 64 of the LGA Act 1993. Consistent with s 306(2)(a) of the WMA 2000, condition 6 for headworks charges, seeks to impose on the Applicant the charges, by way of contribution, associated with connecting the development to water and sewer services, for which the Council is consent authority. 7. With regards to draft condition 6, I find in the Applicants favour that the imposition of this condition is unnecessary at the construction stage. I make this primarily based on the Applicant's advice that no connection to Council's water and sewer is needed during the construction stage of the development due to existing services at the dwellings located onsite. The Applicant acknowledges and accepts the risk associated with leaving the application for the certificate of compliance to the later stage of the development, and recognises Councils concerns of being able to comply with s 307 of the WMA 2000. 8. The parties agree, and I concur that the Council has the authority to impose the relevant charges for connection to water and sewer services, and I find it is not required that the application be made prior to construction stage. However, it is noted that no construction to the sewer and water network can be made until the application is made and certificate obtained. This is consistent with the approach adopted by Basten J in Nash Bros Builders Pty Ltd v Riverina Water County Council [2016] NSWCA 225 at [23]: [23] At trial some little effort was devoted to the search for an "application" and for the relevant notice in writing. However, because the appeal is limited to a question of law and the developer no longer seeks to recover payments already made, what has and has not happened in the past is irrelevant. The power of the respondent to impose fees may be found in Div 5, for the reasons explained above. It may be that payment cannot be required until an application is made and notice in writing given, but under the consent instrument no construction can be done until the certificate is obtained 1. Therefore with regards to draft condition 6 (headworks charges), I propose it be deleted and moved with rewording to the section 'Prior to Issue if Occupation Certificate', as follows: A Certificate of Compliance for this development in accordance with Part 2 of Division 5 of the Water Management Act 2000 shall be obtained from the Council prior to the issue of an Occupation Certificate. 1. With regards to draft condition 7, I agree with the Respondent that the lots that define the site should be consolidated into one allotment and registered accordingly with NSW Land Registry Services. The benefit of lot consolidation for this site is that it serves to ensure that the shops (tenancies 1 and 2) are ancillary activity to the dominant activity of the service station, which is consistent to achieve zone objectives, specifically 'To minimise conflict between land uses within this zone and land uses within adjoining zones' as defined in cl 2.3 of the SLEP 2013. I understand that the development has been assessed and the issues associated with the development such as being within a designated 'high flood hazard' area, noise and access have been addressed as a holistic development, whereby the ancillary shops are subservient to the dominant activity of the service station. I therefore, consider the consolidation of the lots achieves a planning purpose. 2. Further to this, I am of the opinion that the lot consolidation will mitigate any potential disregard or differences in approach due to different ownership across the lots for the effective implementation of the evacuation plan required to address the high flood hazard, which is consistent with achieving the objectives established in cl 7.3(1) of the SLEP 2013. 3. With regards to draft condition 8A, I find it is unnecessary to restrict the use of the ancillary shops (tenancies 1 and 2) and to be registered on title, particularly with the adherence to proposed condition on lot consolidation. The Applicant agrees on the type of use for tenancies 1 and 2, which is complimentary to the dominant service station activity. Wording of condition regarding ancillary uses is as follows: Ancillary Uses The types of ancillary uses for Tenancies 1 and 2 permitted on the land shall be an auto electrician, window tinter, car wash, mechanic and tyre fitter. 1. The description of the use of the ancillary shops without requiring registration on the title is consistent with that held by the Land and Environment Court as expressed in Justice Lloyd in Macdonald v Mosman Municipal Council [1999] NSWLEC 215 at [7], [8] and particularly [14] as follows: [14] I am prepared in this case to follow and apply the principles explained in the abovementioned cases. I am not satisfied that the power of the Council to either grant or withhold development consent for the erection of any further or additional structure on the southern side of the applicant's dwelling house needs to be reinforced in the manner contended for by the Council. The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user. In particular, Cripps J in Carr v Goulburn City Council held that it was not appropriate to impose such a condition. The abovementioned cases show that such a condition is neither necessary nor generally appropriate. I agree. In the present case, on a consideration of the merits, there is nothing in the present case that takes the matter outside those principles. The condition will not be imposed. 1. To resolve the potential issue of adverse amenity due to light by nearby residents from the 24 hour operation of the development, I impose an additional requirement to draft condition 24 (Landscape Plan) as follows: (g)(vii) Provide adequate screening from light and glare to dwellings located to the south of the site. 1. Conditions attached to the consent for DA 199/2016 are provided in Annexure A. All draft conditions subsequent to condition 6 have been renumbered accordingly in Annexure A. 2. I am satisfied that the proposal is lawful and complies with the relevant provisions of SLEP 2013. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are: 1. Leave is granted to rely on amended traffic swept path plans, CO1, CO2 and CO2A dated 16 February 2018. 2. The appeal is upheld. 3. Development Application DA 199/2016 that relates to a highway service centre, including take away food and drink premises, and two ancillary shops (tenancies 1 and 2) within Lot 1 DP 85119, Lot 10 DP 1032989 and Lot 61 DP 1040979, also known as 1, 3 and 5 Bridgman Road, Dunolly is modified by: 1. Amend the reference to 'Fast Fool Elevation' in Drawing Number 07 to read 'Fast Food Elevation'; 2. Delete condition 6; 3. Amend condition 8A, which becomes condition 7A as follows: Ancillary Uses The types of uses in the two ancillary shops permitted on the land being an auto-electrician, window tinter, car wash, mechanic, and tyre fitter. 1. Add to draft condition 24, which becomes condition 23 the following: (g)(vii) Provide adequate screening from light and glare to dwellings located to the south of the site'; and 1. Add the following new condition to the section 'Prior to Issue if Occupation Certificate': 43. Headworks Charges A Certificate of Compliance for this development in accordance with Part 2 of Division 5 of the Water Management Act 2000 shall be obtained from the Council prior to the issue of an Occupation Certificate. 1. The Exhibits, except Exhibits 1, 3, C, D and F are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (106 KB, pdf) 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. Decision last updated: 17 July 2018