NSW Land & Environment Court

Context

JONATHAN AND OTHERS v LISMORE CITY COUNCIL No. 10353 of 1994

IN THE LAND AND No.10353 of 1994

ENVIRONMENT COURT Coram: Bannon J

OF NEW SOUTH WALES 24 April 1995

JONATHAN AND OTHERS 

Applicants

v 

LISMORE CITY COUNCIL

Respondent

JUDGMENT 

This is a planning appeal by Jonathan and his associates ("the
applicants"), against the refusal by Lismore City Council ("the
Council") to grant a development application for a multiple occupancy
of rural land at Jiggi near Nimbin. The Development Application
sought approval to use the land for 16 dwellings and a common
multi-functional building. The land in question comprises over 50
hectares of land being Lot 41 Deposited Plan No.802597. The letter
of refusal was dated 28April 1994 (Exhibit 2, pp.169,170). The
appeal was vigorously opposed by the Council and by the nearby
farming and residential community, eight of whom gave evidence, while
two or three times that number sat in Court and exhibited their
disapproval. A number of written objections are contained in Exhibit
2.

Nimbin, I understand, has a number of community occupancies and
whether these colour the attitude of the people of Jiggi, I do not
know. The leading applicant, Jonathan, who conducted the appeal on
behalf of the collective owners, made a favourable impression on me
as a respectable person with a desire to assist the Court in its
deliberations. Jonathan also called two of his co-owners as
witnesses, and as far as I could ascertain, they were persons
looking to build a dwelling house, with moderate means. There was
no suggestion by the Council that any of the applicants were other
than respectable citizens, or that they would engage in illegal or
anti-social activities. The motivation of the 16 co-owners seeking to
dwell on the same block of land was not explored. A sudden
intrusion into rural community is not always welcome. However, this
is a planning appeal. Multiple occupancies of rural land were
permissible under State Environmental Policy No.15. That policy was
repealed by State Environmental Planning Policy No.42 (Exhibit 1)
which, however, contains transitional provisions enabling the Court to
hear the appeal and grant the application notwithstanding the repeal.

Jonathan appears to possess only that name, and someone suggested
that he had abbreviated his more conventional Christian name and
Surname to the one tri-syllabic word, by deed poll. Perhaps the
same goes for Theana. A list of the applicants who own the subject
land as tenants in common is appended to this judgment. A copy of
a Certificate of Title relating to the land is contained in Exhibit
2, Folios 187-188.

To my mind the most outstanding fact from the planning viewpoint,
isthe statement in a letter from Dr L. Sullivan, Lecturer in Soil
Science, University of New England to Jonathan and Theana dated 5
May 1993 (Exhibit 2, Folio 353) with attached report at Folios 354
to 360. In his letter, Dr Sullivan said:

"On the basis of my on-site inspection of the above property I can
advise you that I assess the amount of Class 3 agricultural land
within the above property to be no more than 7%. In addition there
is no Class 1 or 2 agricultural land present on the property".

No attempt was made to contradict Dr Sullivan's opinion. This leads
to the conclusion that only three and a half hectares, or seven
acres, of the land is suitable for agriculture. The land is in the
form of a three sided amphitheatre rising from Davis Road to the
East, North and South. It lies to the West of the (hopefully)
extinct volcanic craters of which Mount Warning forms part. The rise
to the Eastern ridge is fairly steep and some of the land has
been the subject of earth movement and slip from time to time. A
report to the Council from the Department of Conservation and Land
Management dated 31 January 1994 (Exhibit 2, Folios 291 and 292)
refers to this, but claims no expertise. A further letter from CALM
to Mr R. Haeusler dated 22October 1993 deals with suggested road
construction and dam sites (Exhibit D).

The chief objection to the proposed development mounted by the
Council was that the site was unsuitable for the proposed dwellings
by reason of soil instability and slip. This argument was supported
by the evidence of Dr P. Shaw, a Geotechnical Engineer, with Coffey
and Partners. Dr Shaw's report is Exhibit 3 and his Curriculum
Vitae is Exhibit 11. Further support was derived from a paper
(Exhibit17). Dr Shaw was an articulate and informative witness. He
left me in no doubt that portions of the subject land have
suffered slip in the past and are liable to suffer slip in the
future. The plans of the proposed development had been amended in
the application stage and became Exhibit A. Working from the plan
(Exhibit A) showing the proposed dwelling sites and entry road, Dr
Shaw marked areas of landslip backscarf and of slip debris movement
on the plan being Figure 2 to his Report. Some of the proposed
sites were clear of slip and some were not. There was also an
area of slip near the access road and near some of the proposed
dams. In an endeavour to overcome Council objections on this basis,
during the hearing Jonathan tendered two proposed amendments, one
becoming Exhibit H and the other Exhibit N.

Mr G. Newport, of Counsel appearing for the Council, objected to
the admission of these documents. He submitted that Dr Shaw had
based his Report on Exhibit A, and to consider the proposed
amendments would deny the Council procedural fairness. At this stage
it should be observed that Dr Shaw never tested the site. As his
Report fairly discloses it is based on a desk study and a walk
over assessment. I do not see that admitting Exhibits H and N
affected the opportunity of Dr Shaw to report on the site or the
quality of his Report. He was still able to say in oral evidence,
as he did, what he observed about the site. However, there are
further cogent reasons which suggested to me that the Council was
not taken by surprise. Jonathan and his associates had caused
information concerning borehole charts of drillings on the proposed
sites to be forwarded to the Council by consultants Kieran Byrnes
and Associates, some of whose Reports appear in the Council files
(Exhibit 2,Folios 306 to 308 and 361 to 437). The Council did not
seek further information, nor did it ask permission to make tests
itself. The first four borehole results are to be found in Exhibit
F and later charts in Exhibit K.

I do not regard Exhibits H and N as proposing material amendments
to the proposal. The proposal remains fundamentally the same for 16
dwellings on a multi-occupancy site. Mr Newport submitted that some
sort of estoppel in pais prevented the applicants from going from
one proposed variation to another. I do not accept this. The Court
is not constrained to abandon consideration of the application before
the Court simply because amendments are proposed. An examination of
the transcript of the first day's hearing at pp.29 to 37 reveals
that it is by no means clear that the applicants were abandoning
their original application, but simply tendered Exhibit H as a way
of meeting objections. Further, it may grant the application with
variations if these variations do not alter the proposal in a
material particular. Exhibit H proposed moving some dwellings out of
the path of identified slip, and Exhibit N excised a parcel of
land belonging to a Mr Newton, which had been included by mistake,
an old unnamed road site, and the plan proposed moving dams and a
transpiration bed led to better positions, following criticism. I do
not consider either of them involves a material alteration of a
proposal to put 16 dwellings on 50 hectares of land. But a further
consideration emerges. It is open to the Court to approve the
application, subject to conditions which postpone final consent,
Parkes Developments Pty Limited v Cambridge Credit Corporation Limited
and Another (1974) 33 LGRA 196 at 204 and s.91AA of the
Environmental Planning and Assessment Act , 1979 ("the Act") now
gives statutory authority for this course.

Another geotechnical engineer who wrote a Report and gave oral
evidence was Mr T.A. Jones. His Report is Exhibit J and his
Curriculum Vitae is Exhibit M. He prepared the alternative layout
Exhibit H. Mr Jones said it was true that there were areas of
landslip on the subject property, but it was not nearly as serious
as the Council alleged. He said Mr Byrnes' borehole results showed
that loose soil did not extend very far from the surface and that
solid rock was found at varying depths averaging 1.5 metres up to
3 metres. One site, No.3a, found rock at 4.85 metres.

Mr Jones said that if the dwellings were erected with foundations
on wooden piers socketed into the rock there would be no danger
from slip and the homes would have a reasonable life expectancy. He
also said any slip problems with the access road would be overcome
by providing a banked and bituminised road in any area of loose
material.

A strong attack was mounted upon the qualifications of Mr K.
Byrnes, who carried out the borehole tests and whose reports are
Exhibits F and K aforesaid, as well as those contained in the
Council Files (Exhibit 2). Although he describes himself as a
geotechnical consultant, he admitted he did not complete a degree
course at Macquarie University and lacked tertiary academic
qualifications. However, he has had 25 years experience in his field
of activity, beginning with employment with the Department of Main
Roads. He has examined many landslips and no attack was made on
the accuracy of his core-drilling or upon the accuracy of his
borehole logs.

In my opinion Mr Byrnes' evidence on these matters should be
accepted, and I also accept the opinions both of Mr Jones and of
Mr Byrnes that the proposed houses may be built safely,
notwithstanding the presence of some landslip in the upper portions
of the soil. If necessary, the sites can be varied slightly as
indicated in Exhibit H without any material departure from the
development proposal before the Council and now before the Court. It
appears to me that the argument as to landslip can be solved by
imposing a term of any consent, that no building is to be erected
until a certificate from a geotechnical engineer is given to the
Council, certifying that the proposed structure is reasonably secure.
A similar certificate should be given as to the structure of the
access road. Council's proposed conditions 9 and 10 (Exhibit 2,
Folios 10-13) cover this.

A further submission on behalf of the Council related to the siting
of dams and of transpiration beds. These, in my opinion, are not
of the essence of the application. The sites suggested in Exhibits
H and N appear to be satisfactory. It is important that run-off
does not pollute nearby creeks and waterways. I believe approval may
be granted subject to their siting being as proposed in Exhibits H
and N, subject to the reasonable satisfaction of the City Engineer.
It was pointed out that if necessary the households could survive
using rainwater and tanks drawing from the cottage rooves. In an
area of plentiful rainfall I think this is true, but installation
of the dams is also desirable, especially to assist with
firefighting, a matter raised by the witness Mr R.F. McGrath.
Building the new houses from scratch will enable modern fire
resistant construction to be employed. The details of construction
are matters to be dealt with under a building approval, and do not
arise in the present proceedings.

The New South Wales National Parks and Wildlife Service by letter
dated 18January1994 to the Council (Exhibit 2, Folio 290) stated:

"The Service is satisfied that the proposed development of 16
dwelling units on this property is unlikely to significantly affect
the environment of protected (including endangered) fauna."

A further issue raised by the Council concerned Aboriginal relics.
While it was not suggested that Aboriginal relics existed, the
Service recommended a survey be undertaken. As there is no evidence
of Aboriginal relics on the site, I see no reason to delay this
application in a search for relics. The Report (Exhibit 6) threw no
light on this question.

It was also alleged that the 16 dwellings proposed on the site
would unfavourably affect the visual amenity of the neighbourhood.
This appeared to be wholly indefensible as a proposition. In my
view, they would hardly be noticeable, and could well be an
improvement on some existing farmhouses.

Likewise Mr L.H. McNamara, a dairy farmer on adjoining land to the
South, and Miss M.D. Crooks who owns 5 acres immediately South were
concerned, the latter with the loss of privacy. Mr McNamara was
concerned to have adequate screening. I believe lantana and other
growth already give sufficient screening, but I am prepared to
impose a condition requiring sufficient bush screening on the South
of the property to the reasonable satisfaction of the Council's Town
Planner.

Mr K.M. Newton, an adjoining owner on the East raised many
objections, some in evidence and some in a detailed statement of 4
February 1994 (Exhibit 2, following Folio 555). His concerns that
the development included a reserved road belonging to him has been
met by applicants excising that road on the plan (Exhibit N). I am
not satisfied the development would seriously affect his views or
prevent effective screening.

Weighing up all the factors mentioned in s.90 of the Act, and
taking into account the careful considerations of the Council's Town
Planner (Exhibit 4) and other officers, without canvassing each in
detail, I consider the application ought to be granted.

The Council has a s.94 contribution plan and under the plan, the
requisite contribution has been calculated at $91,965.00 together with
contribution under s.64 of the Local Government Act , 1993 (Exhibit
2, Folio 10). No argument has been presented as to why this should
not be paid, and I propose to make it a condition of consent.
However, the applicants appear to be persons of modest means, and
payment of a large lump sum of this nature may prove an
insuperable obstacle to development. I would therefore order the
payment to be made by annual instalments over a period of seven
years, the first payment to be made on 30April1996 and the unpaid
instalments carrying interest at the rate of 6%, such interest to
be paid seriatim with each instalment.

The Council also sought a further contribution for roadworks
andreconstruction of a concrete causeway and a deck overlay on Davis
Road and Davis Bridge, citing increased traffic generation as a
reason. I am not satisfied the development will make any material
difference to the use of the roads, the causeway and the bridge.
These are general costings which ought to be met by all ratepayers.
I doubt that there is power to add contributions outside of s.94
of the Act. Fitch v Shoalhaven City Council (1987) 67 LGRA 165 at
170. I will not impose these conditions.

The remaining conditions proposed by the Council (Exhibit 2, Folios
10 to 13) appear reasonable. Subject to excising Conditions 3, 4, 5
and 6 and varying condition 2 to allow for time for payment as
indicated, I uphold the appeal and approve the development
application for the land shown in Exhibit N (that is, excising Mr
Newton's reserved road), the houses to be located as shown in
Exhibit H, the transpiration beds and dams as shown in Exhibit N,
and the internal access roads as shown in Exhibit N, subject to
the conditions (Exhibit 2, Folios 10 to 13), varied, as indicated
herein, including an appropriate additional condition concerning
screening on the South as previously indicated.

It should be noted that Mr Newport presented the Council's case
with vigour and ability. It is always difficult for Counsel to
appear against unrepresented persons. The considerations which lead me
to granting the approval arise notwithstanding the care with which
the Council's case was presented. I direct the Council to bring in
Minutes within 14 days of the date of this Judgment incorporating
the conditions of approval as defined herein. Exhibits may be
returned with theexception of Exhibits A, H and N. Liberty to
apply. No order as to costs.

SCHEDULE OF APPLICANTS 

SHARES FULL NAME 

1/16Peter Robert Wisdom

1/16Gunther Pless

3/16Jonathan

2/16Theana

1/16Alan Doohan

1/16Anthony Mason Dick

1/16Pamela Hoang

1/16Tanya Lee Haeusler

1/16Kylie Ann Haeusler

1/16Christopher Allen Steel

1/16Vyvyan Phillip Stott

1/16Jonathan and Theana

1/16John Thomas Doohan and Mary Pamela Doohan

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE
AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE
HONOURABLE MR JUSTICE BANNON.

Associate