NSW Land & Environment Court

Context

MARK ANSON v LISMORE CITY COUNCIL No. 10239 of 1994

IN THE LAND AND No 10239 of 1994

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 16 December 1994

MARK ANSON 



Applicant





v. 

LISMORE CITY COUNCIL



Respondent 



JUDGMENT 

Bignold J.:

A. INTRODUCTION 

This is an appeal pursuant to s97 of the Environmental Planning and
Assessment Act 1979 (the EP&A Act) against the determination of the
Council refusing development consent to a development application for
a proposed multiple-occupancy development of ten dwellings (comprising
nine new dwellings and an existing dwelling) to be contained in two
separate clusters each of five dwellings which are conveniently
described as the "village cluster" and the "forest cluster" on a
rural parcel of land known as No 336,The Channon Road being Lot 23
Deposited plan 773782 situate a few hundred metres from the existing
rural village called The Channon.

B. THE COUNCIL'S DECISION 

The Council's refusal of the application was founded on nine grounds
which had been formulated by Mr Juradowitch the Council's Divisional
Manager - Planning Services, at the request of the Council to
nominate reasons for the Council's decision to refuse the development
application.

The grounds of refusal are set forth in the Council's notice of
determination given to the Applicant a copy of which is annexed
hereto and marked "A" .

Mr Juradowitch in formulating reasons for refusal informed the
Council that since he supported the application he could not appear
as a witness for the Council if the case proceeded to an appeal
and that it would be necessary for the Council to hire a
Consultant Planner.

Mr Juradowitch, as the Council's Senior Town Planner had endorsed
the Council's staff report prepared by Mr Scott, Development Control
Planner, on the development application recommending that the
application be approved subject to specified conditions.

That report, upon which the Applicant naturally placed great reliance
in theseproceedings, is a detailed consideration of the application
and the responses to the public advertisement of it received both
from private citizens and public authorities. Its conclusions were
stated as follows:

"The proposed development complies with the requirements of SEPP No
15 and is consistent with Section 90 of the Environmental Planning
and Assessment Act. It is noted that there has been some concern
expressed by adjoining land owners. However it is felt that these
concerns can be alleviated by the imposition of appropriate
conditions of consent and the re-location of dwelling sites 7 and
8. It is considered unlikely that the development will cause
environmental harm or adversely impact on existing adjoining land use
practices and the existing village/rural amenity of the locality.
Expressed concerns as to the future impact of the development are,
upon assessment, not considered sufficient to be given determining
weight as grounds for refusal."

C. THE ISSUES IN DISPUTE AT THE HEARING 

At the hearing, the Council raised additional issues to those upon
which its decision had been based. These amplified issues are set
out in the Council's refined statement of issues (Exhibit 7) a copy
of which is annexed hereto and marked "B" .

The Council ultimately placed principal reliance upon the following
issues:

1) the geotechnical stability and suitability of the development
site;

2) the water supply to the proposed development;

3) the disposal of effluent from the development.

The Council argued that these issues had not been adequately
addressed by the Applicant in his application and in his case
presented on the hearing and that since theyinvolved matters of
fundamental importance it was not appropriate that they be deferred
for ultimate decision by virtue of the imposition of appropriate
conditions.

The Applicant's contrary argument was that the Council's case for
refusal of the application had not been made out and that it was
appropriate for conditional development consent to be granted.

D. THE APPEAL SITE 

The appeal site comprises an irregularly shaped parcel of land
containing an area of 33.23 ha having frontage, at its lower
elevation to The Channon Road and at its upper elevation to
Standing Street, located some 300m from the existing village
boundary. It also has at its lowest elevation extensive frontage to
Rocky Creek. The range in elevation of the appeal site is between
30m AHD adjacent to Rocky Creek and 130 AHD near its north eastern
corner.

The majority of the appeal site is covered by expansive stands of
forest, particularly on its lower slopes along the Rocky Creek
frontage and on its steep ridges. There are some cleared, more
level areas, previously used for cattle grazing. The two proposed
clusters are located in these cleared areas, the village cluster
being accessed via Standing Street and the forest cluster being
accessed via The Channon Road.

The appeal site is located within zone No 1(a) "General Rural Zone"
under Lismore Local Environmental Plan 1991 ("the LEP").

It is common ground that the proposed development is development
that may be permitted, subject to the grant of development consent
in terms of State Environmental Planning Policy No 15 - Multiple
Occupancy of Rural Land which came into force in 1988 and which,
although recently repealed (on 1 December 1994) by State
Environmental Planning Policy No 42 effectively, for the transitional
purposes of determining the present and other pending development
applications is deemed to continue in force - vide cl 7(1) and (3)
.

E. ADJUDICATION ON THE COMPETING CASES 

The Council called three expert witnesses, Dr Shaw, a geotechnical
engineer, whose report was Exhibit 9; Mr Dey, a civil engineer
whose report was Exhibit 10; and Mr Glazebrook, a consultant town
planner whose report was Exhibit 11.

These reports dealt respectively with the issues of (i) the
geotechnical stability and suitability of the appeal site; (ii) the
capacity of the appeal site to absorb on-site effluent disposal; and
(iii) the town planning appraisal of the proposed development.

The Applicant called evidence from Mr Doolan, a consultant town
planner whose report was part of Exhibit B. He also called Mr
Norris, a Health and Building Surveyor employed by the Council on
the question of the capacity of the appeal site to absorb on-site
effluent disposal from the proposed development.

In addition to the expert evidence, the Council called evidence from
five localobjectors, whose testimony supported the written objections
that they had raised against the development proposal during the
processing of the application by the Council.

Mr Glazebrook's town planning opinion placed considerable reliance
upon the more specialised expert opinions of Dr Shaw and Mr Dey in
relation to geotechnical and effluent disposal considerations.

In my judgment, the evidence of Dr Shaw does not establish that
the appeal site is unsuitable in terms of geotechnical considerations
for the proposed development.

His evidence helpfully classified the appeal site in terms of risks
of instability - see figure 2 of Exhibit 9 . It demonstrates that
each of the dwellings in the proposed clusters are located within
parts of the site within the designated low or moderate risk zones
and that relatively small sections of the two separate internal
access roads (involving in each case some 50m) traverse lands within
the high risk zone (including in the case of the village cluster,
a section the subject of a prior land slip).

However Dr Shaw positively stated that provided the proposed
development proceeded with due regard being given to geotechnical
considerations (including investigative and remedial engineering works)
the risk of potential slope instability and erosion would be
eliminated. In particular he regarded Condition 11 of the Council's
draft conditions of development consent (Exhibit 13) to be an
appropriate means of ensuring proper regard to geotechnical
considerations in the development of the appeal site as proposed by
the Applicant.

In my judgment Dr Shaw's evidence does not support the Council's
submission that the proposed development should be refused on
geotechnical grounds.

Similarly, I do not regard Mr Dey's evidence as establishing any
insurmountable problems with the capacity of the appeal site to
properly deal with effluent disposal. In the opinion of Mr Norris,
a Council servant very well experienced with on site effluent
disposal systems, especially those relevant to multiple occupancy
developments, there are a number of working options for on site
effluent disposal. I did not understand Mr Dey's opinions to be to
the contrary, although his testimony was to the effect that further
investigation would be required before the effluent disposal system
is finally and fully designed. Again, this is a matter that can
rightfully be dealt with by appropriate conditions - eg condition 13
of the Council's draft conditions.

On the basis of all of the relevant evidence, I am satisfied that
the appeal site has the capacity to adequately cope with any
geotechnical problem and on-site effluent disposal problem, subject to
appropriate further investigation and design, such as are called for
in the conditions of consent suggested by the Council (and
acceptable to the Applicant).

So far as concerns the town planning evidence, I decisively prefer
the opinions advanced by Mr Doolan in preference to the competing
opinions advanced by Mr Glazebrook. I do so for a number of
reasons. Firstly, Mr Doolan has considerable (if not unrivalled)
experience in proposing and assessing multiple occupancy developments
within the northern rivers region. Secondly, he has been involved in
the present case since the time that he prepared the development
application and the supporting statement of environmentaleffects.
Thirdly his testimony was highly impressive. Finally, Mr Doolan's
planning appraisal is supported by the planning appraisals of the
Council's own town planning staff, who have acquired considerable
experience and expertise in rural multiple occupancy developments.
Within Lismore City there are some 62 multiple occupancy
developments, by far the greatest number in the State.

In the circumstances I find the proposed development to be an
acceptable form of multiple occupancy development, and to be a
suitable development for the appeal site. In so finding I am also
satisfied that the proposal satisfies the relevant express objectives
and statutory criteria contained in SEPP No 15 (vide cll 2 and 8).
I am also satisfied that the proposed development, when developed in
accordance with the conditions I consider appropriate to be imposed,
will satisfy the relevant objectives and criteria of the LEP (vide
cll 8 and 17). Finally I am satisfied that the development, as
amended at the hearing by the relocation within the forest cluster
of dwelling sites 7 and 8, will also satisfy the statutory criteria
of the LEP (cl 33) and of the North Coast Regional Plan 1988 (cl
12) in terms of the proposal not being inimical to existing
agricultural undertakings located nearby.

Additionally I should note that the proposed development accords with
the requirements of the Development Control Plan No 20 which came
into force only recently (16 July 1994) well after the Council's
decision in this case.

Finally I should mention the resident objections to the proposed
development. Each of the objectors who gave evidence is no doubt
genuinely concerned about the possible adverse impacts for them of
the proposal. However I do not think that the force or weightof
these objections militates against the grant of consent. In this
respect I find myself reaching the same conclusions, as were reached
by the Council's planning staff. In particular there is no ground
for thinking that the proposal will adversely affect the existing
agricultural pursuits in the environs of the appeal site, or will
adversely affect existing or likely future amenity of the area. It
is to be noted in this latter respect, that the Council's proposed
amendment to its LEP (Amendment No 4 - Exhibit 4) is likely to
result in rural lands surrounding The Channon Village being more
intensively developed for rural/residential developments than may
currently be permitted. I interpose that not all local residents who
responded to the proposal opposed it. Many local residents supported
the proposal. However they were not called as witnesses.

It is not necessary for me to discuss in detail my findings on
the other issues raised by the Council other than to say that I
am satisfied that the questions of water supply and bushfire control
have been adequately dealt with in the Applicant's case. Those
matters were considered to be acceptable to the Council's planning
staff in their expert appraisal and nothing presented by the Council
at the hearing displaces or rebuts the appraisals made by the
Council's staff.

Accordingly for the foregoing reasons I am of the opinion that
development consent should be granted to the proposed development
subject to the imposition of appropriate conditions.

F. APPROPRIATE CONDITIONS 

In my opinion the conditions of consent suggested by the Council
should generally be imposed.

However I do not think it necessary or appropriate to impose
Condition 37 requiring the undergrounding of electricity to the
appeal site. Nor do I think it appropriate to require a greater
water storage capacity than that stipulated in DCP No 20. The
Council urged the adoption of the greater requirement proposed to be
made under draft DCP 30 which will come into force when the
Amendment No 4 to the LEP comes into force (which is expected to
be early next year). However the present development does not fall
within the ambit of that proposed planning regime and it is more
fair and appropriate for the current proposal to be evaluated under
the present controls applicable to multiple occupancy developments.
Accordingly Condition 44 which adopts the current water supply
storage requirements of DCP 20 will be imposed in preference to the
higher requirements sought by the Council.

Condition 3 has caused me some little trouble because, as Counsel
for the Council frankly admitted in his final address, it smacks of
double dipping ie it imposes an additional obligation in respect of
Standing Street beyond the obligation imposed by the s94 contribution
requirement. To avoid that unfairness, I propose to discount the
requirement of Condition 3 so that recognition and effect is given
to the s94 contribution imposed by Condition 2 insofar as it
relates to contributions to road improvements.

Condition 45 , as suggested by the Council will be re-drafted, to
operate more fairly and flexibly should the Applicant desire to
proceed with the two clusters in successive stages as appears to be
quite feasible given the disparate locations and access arrangements
for each cluster.

I have also made some refinements to other conditions suggested by
the Council, in response to the submissions of the Applicant, which
I think are reasonable in the context of an avowedly low costs
housing scheme.

In passing I should note that I regard the imposition of
conditions, in respect of the fundamental matters as submitted by
the Council to be an appropriate exercise of the powers conferred
by ss91 and 91A of the EP&A Act.

G. COSTS 

The Applicant has asked for costs on the basis that it has had to
appeal against the Council's decision which is asserted to be an
improper decision in the sense that it was unreasonable and
unreasoned, save for the reasons for refusal, formulated by Mr
Juradowitch, only after the Council had resolved to refuse the
application.

I can understand the Applicant's application for costs. However I do
not think that costs should be awarded against the Council. Costs
in development appeals are not generally awarded and when they are,
it is generally necessary to show some exceptional circumstance, as
the Court's Practice Direction on costs expressly recognises.

The fact that the Council did not accept its expert planning
staff's recommendations is not, of itself, a sufficient reason to
order costs against the Council. Nor is the fact that the Council,
in deciding to refuse the application, thereupon turned its
collegiate mind to the grounds for its decision. This may at first
blush appear to be an irregular or unusual phenomenon in the
discharge of Council's responsibilities under ss90 and 91 of the
EP&A Act. However I think it not to be improper.

More importantly the case presented by the Council at the appeal
hearing was not an insubstantial or spurious case. It raised serious
questions concerning potential geotechnical problems and on-site
effluent disposal problems.

In large measure the problems raised in the Council's case will
dictate the manner and means of the future implementation of the
conditional consent that I propose to grant.

Furthermore the Applicant did make some changes to the proposal in
the course of the hearing in order to overcome some of the
problems demonstrated in the Council's case eg relocating dwelling
sites 7 and 8 more closely within the forest cluster and abandoning
individual on site effluent disposed for each dwelling.

In all the circumstances I do not think any costs order should be
made in the present case though I have been almost persuaded to do
so.

H. ORDERS 

For all the foregoing reasons I make the following orders:

1. Appeal allowed.

2. Development consent granted to the development application (as
amended in the course of the hearing) subject to the conditions set
forth in the document annexed hereto and marked "C".

3. Exhibits (other than Exhibit 13) to be returned.

4. No order as to costs.

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I HEREBY CERTIFY THAT THIS AND THE PRECEDING 12 PAGES

ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT

HEREIN OF HIS HONOUR MR JUSTICE NR BIGNOLD.

Associate 

Land and Environment Court of New South Wales 

Record of hearing 

Judge Bignold J

Number 10239 of 1994

Parties Applicant MARK ANSON

Respondent LISMORE CITY COUNCIL



Key issues % Proposed multiple occupancy development.

% Merit issues inter alia geotechnical stability, water supply and
effluent disposal.

Statutes % Environmental Planning and Assessment Act 1979 - s97.

Hearing date(s) 12, 13, 14 and 15 December 1994

Judgment Reserved

Date of judgment 16 December 1994

Appearances Applicant Mr Graham Irvine (agent)

w/ Mr Peter Hamilton (co-agent)

Respondent Mr Greg Newport (Barrister)

Solicitors Applicant n/a

Respondent Bondfield Riley Solicitors



Number of pages 12



Summary of orders 

% Appeal allowed - development consent granted subject to conditions
set forth.