Findings SEPP 1 objection
45There is no hiding of the applicant's intent to subdivide the land for the purpose of rural residential development, rather than for agricultural or horticultural purposes. Indeed, Mr Martin's reasons in support of the SEPP 1 objection frequently refer to a future dwelling on Lot 2.
46The applicant relies to a large extent on the fact that HLEP 2013 permits, with the consent of council, a secondary dwelling on RU2 Zone land, as a way of suggesting that this somehow derogates from the zone and density objectives in the Rural BR (Small Holdings) zone and HLEP 1994 that specifically seek to limit population growth and control density in this zone. I agree with council's position that there is nothing preventing the applicant from lodging a development application for a secondary dwelling under the current LEP. That application would then be assessed on its merits. Indeed, relying on one small element of an instrument that expressly prohibits the proposed subdivision (clauses 4.2 and 4.6(6) in HLEP 2013) does not provide a very good starting point.
47In considering the applicant's argument, I have considered Preston CJ's rationale in Wehbe at [68]-[70] as the general proposition is similar. The objective in cl. 14 HLEP is to 'provide for the development of land at a density that is in accordance with the land's environmental capacity and zone objectives'. This is achieved through the establishment of minimum lot sizes for the various zones and associated land uses that presumably provide enough land for the described purpose of the zone; for example Rural AA (Large Holdings - Agricultural Landscapes) 10ha, Rural AE (Large Holdings - Extraction) 10ha, Residential AR (Low Density - Rural Village) 500m2, Environmental Protection D (Recreation) 5ha and so on. While each zone permits a range of development, the inherent intent is to maintain the integrity of that descriptive purpose given by the name of the zone.
48The density control and development standards in cl. 14 are reinforced by the zone objectives. The relevant zone objective for Rural BR (Small Holdings- Rural Landscapes) is (a) - 'to restrain population growth and maintain the rural character of the area'. I can see the applicant's reasoning in suggesting that eventually placing another dwelling across the road from the existing dwelling would appear similar to the location of dwellings on similarly zoned land on Quarry Road. However this rationale relies on the borrowed visual setting of the adjoining bushland in order to achieve the 'rural residential' character. The applicant has no control in determining what might occur on that adjoining land. In my view, the rural character is already achieved by the existing dwelling and associated cleared land. Subdividing for the purpose of adding an additional residence is not a strategy to 'restrain population growth', particularly when the existing lot is of the minimum size for the Rural BR zone and far less than the 40ha minimum for the Environmental Protection B zone that extends onto the lot.
49Objective (b) for the Rural BR zone is 'to provide for compatible land uses, including agriculture, which maintain the rural environment of the area and support the urban populace'. The planners agreed that proposed Lot 2 is unlikely to be capable of supporting any conventional agricultural activities, however the zone permits many other activities such as animal boarding, aquaculture, intensive animal establishments, and intensive horticulture establishments.
50A clear theme of the applicant's argument, as expressed by Mr Martin, is that the Crown road provides a major barrier to the applicant's use of the land on the western side of the road.
51Having visited the site, the Crown road reserve is only discernable because of the dirt track within it. The dirt track is about 3-4m wide and about 20-25m from principal rear western façade of the dwelling on the site. No information was provided as to how many vehicles use the road. The dwelling on the site is accessed off a driveway at the northern end of the Crown road and therefore the use of the section of the road to the west of the dwelling is likely to be limited to the owners of the two properties to the south and their visitors. Therefore it is highly probable that there is very little traffic on the track that would make it difficult or unsafe to use the western portion of the site for any purpose usually desired by anyone purchasing a 2ha rural residential lot. It appears to provide as much of an impediment to anyone on the site as the driveway servicing the dwelling does, given the driveway and the dirt track are about the same width.
52Therefore I am not satisfied that the applicant has established that subdivision of the site is an appropriate and desirable method of providing a compatible land use which maintains the rural environment of the area and supports the urban populace. As noted in Wehbe at [77] "However, there is nothing unreasonable or unnecessary about the existing allotment remaining at that size.... Indeed, the size of the existing allotment may provide greater flexibility for design of and compliance with development standards and planning controls applicable to development of the land than if the existing allotment were subdivided into tow allotments." In my view, the proposed subdivision for residential purposes is contrary to zone objective (b).
53The third zone objective (c) is to 'ensure development is carried out in a manner that improves the environmental qualities, and is within the servicing capacity of the area'. The main thrust of the applicant's argument in regards to this objective is that allowing a subdivision for residential purposes and imposing strict conditions for weed and erosion control will result in a better environmental outcome than maintaining the status quo. Mr Martin's statements in [33] indicate there is no incentive for the current owner to undertake these activities.
54As stated in [12], the Rural Fire Service has issued a bush fire safety authority pursuant to s 100B(1)(a) of the Rural Fires Act 1997. Amongst other things, the authority requires an extensive area of proposed Lot 2 to be maintained as asset protection zone. Figure 3 in the 'Bushfire Protection Assessment & APZ Design' prepared by Eco Logical dated 21 June 2013 shows the APZs approved by the RFS (Exhibit B, Tab 6). The figure shows a 35m wide inner protection area (IPA) along the western boundary and a 20m wide IPA to the south of the proposed available area for a building footprint. To the south of the southern IPA is a further outer protection zone 10-15m wide. Part of the western and all of the southern proposed APZs are within relatively undisturbed bushland.
55The ecologists agreed that the creation of an IPA would require tree removal and under-scrubbing. The ecologists also agree that the site, in particular the western side of the crown road, provides potential habitat for the listed Tetratheca glandulosa, and foraging, nesting and or breeding habitat for a number of threatened fauna species including Red-crowned Toadlet, Giant Burrowing Frog, Eastern Pygmy Possum and a number of species of bats.
56While Mr Introna appeared as the applicant's expert ecologist in the Court proceedings, he did not prepare the 'Flora, Fauna and Arborist Report' that accompanied the development application (Exhibit B, Tab 7). That report, dated 21 June 2013, was prepared by Mr Niels Rueegger of Eco Logical. Mr Introna approved the report and visited the site for one to two hours with the person who prepared the Bushfire Protection Report. Mr Rueegger is recorded as having spent six hours on the site on 30 May 2013 - a mild, sunny day.
57Figure 2 in the Flora, Fauna and Arborist Report indicates that the study area was limited to the area of proposed Lot 2 and did not extend beyond the site boundaries. Unusually, 'the site' is shown as a portion of proposed Lot 2, in particular the most disturbed and cleared portion, and not the entirety of the existing lot. Therefore any references to 'the site' in that report have to be read in that context. The report concludes:
The subject site was surveyed and assessed for the potential impact the creation of the proposed APZ required for the property subdivision would have on threatened species, populations and communities. The proposed direct impact would be the clearing of vegetation for the prescribed APZ. No building design has been proposed as yet and so was not assessed in this report.
The subject site contains a predominately disturbed under and mid storey with remnant canopy trees still present, although 21 trees were dead. The flora and fauna report identified that the subject site contains no EECs. A number of threatened flora and fauna species have been recorded within the locality. One threatened flora species and ten threatened fauna species were considered to have the potential to occur. No hollow-bearing trees were recorded on the subject site, although three were found to the south of the site. The 21 dead trees proposed for removal were predominantly small trees containing no hollows.
Application of the Assessment of Significance [s 5A(2) of the EPA Act] to the threatened flora and fauna species with the potential to occur in the study area determined that none of these are to be significantly impacted by the proposed works provided that the drainage line is protected from sedimentation and riparian vegetation loss....
Given that the proposed works would not significantly impact on species protected under the TSC Act, a Species Impact Statement is not required for the proposed development with respect to matters protected under the TSC Act.
58The report makes some general and brief recommendations to limit clearing, retain some shrub and tree cover, protect the drainage line by retaining at least 2m of riparian vegetation, install erosion and sediment controls, and manage weeds.
59In oral evidence, it was confirmed that no targeted surveys of any flora and fauna, including the Red-crowned Toadlet or Tetratheca had been carried out despite the Flora, Fauna and Arborist Report noting that the Red-crowned Toadlet had been recorded about 5m to the east of the site and Tetratheca had been identified 20m to the west of the site with 21 records of it within a 3km radius including five within the same sub-catchment (p.25).
60It was agreed that the 'drainage line' referred to in the report is the drain beside the unformed track within the Crown road reserve. Mr Introna agreed with Mr Rigg that should the road be upgraded, it would be possible to construct the drainage line to contain suitable breeding habitat for the Red-crowned Toadlet. If left in its current state, Mr Introna stated that the drain would need to be managed to control flows and weeds.
61Apart from conditions relating to any future dwellings, Mr Rigg confirmed that the applicant would also accept deferred commencement conditions requiring further environmental assessment, and subsequent conditions requiring on-going bushland weed control. He submits that the evidence of the ecologists is sufficient for the Court to uphold the SEPP 1 objection and therefore the appeal, subject to strict compliance with conditions.
62Mr Seton contends that the Court cannot be satisfied that the proposal will be carried out in a manner that improves the environmental qualities of the site. The creation of the APZ will remove a substantial area of vegetation and, given the inadequacy of the ecological assessment - including the lack of regard to the DECC "Threatened species assessment guidelines: The assessment of significance" and the timing of the survey, there is no certainty that threatened species or populations will not be harmed. The timing of the survey is relevant (a sunny day in late May) as Tetratheca would not have been flowering and the Red-crowned Toadlet is best detected after rain.
63Mr Seton also submits that the applicant has not put forward any measures to mitigate potential impacts; rather, council has had to consider what measures might be necessary should the Court approve the sub-division. He cites Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 where Preston CJ at [83] states in part: "Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards."
64I agree with the council that the extent of the ecological investigation is pitifully inadequate in very many ways given the number of recorded threatened species within close proximity to the site. In my mind, there is simply no logic in arguing that removing a substantial area of relatively undisturbed bushland that is highly likely to provide habitat for a number of threatened species, in order to provide bush fire protection, ensures that 'development is carried out in a manner that improves the environmental qualities...of the area'. In my view, the proposal will diminish the environmental qualities of the area.
65The practical effect of creating an inner protection zone will necessitate removing trees to create adequate canopy separation, removing much of the mid and understorey vegetation, and reducing the amount of leaf litter and other debris on the surface. Page 93 of the Flora, Fauna and Arborist Report notes that the Red-crowned Toadlet is "found under logs on soil, beneath thick ground litter, particularly near large trees and in horizontal rock crevices near the ground". While Mr Introna suggested that logs and trees removed for the APZ could be located elsewhere in bushland, I fail to see how this would compensate for the level of habitat removal necessitated by any subdivision for residential purposes.
66The submission that subdivision and subsequent imposition of strict conditions will achieve better environmental outcomes than currently exist seems to suggest that the current owner is either incapable of or unwilling to maintain their property and the responsibility should, to a large extent, be transferred to the future owners of Lot 2. I am not satisfied that this is a well-founded basis for the SEPP 1 objection.
67The applicant has failed to establish that strict compliance with the development standard would hinder the objects specified in s 5(a)(i) and (ii) in the EPA Act. To a large extent the applicant relies on the existence of a Crown road reserve on the site as justification for the sub-division and by inference, the achievement of the specified objects. I accept Mr Kennan's oral evidence that there are likely to be hundreds of 'paper' and Crown road reserves in the Hornsby LGA and thousands throughout the State. In this regard I note the findings in Wehbe at [79] - they are apposite to this matter (citations omitted):
79 If the SEPP 1 objection to compliance with the development standard in clause 11(2) were to be upheld for subdivision of this land on the grounds given in the original SEPP 1 objection, there would be little justification for not upholding SEPP 1 objections to subdivision of land of similar size and nature in the locality. These grounds are of a general nature and would be applicable to many sites in the locality. They are not particular to the circumstances of this land. The ad hoc deviation from the development standard in this case on these grounds would, therefore, create an adverse planning precedent for similar action to be taken in relation to other such land. This would affect the integrity of the planning policy embodies by clause 11. This would not be an appropriate use of the dispensing power under SEPP 1.
68The same rationale applies in this matter; there are many similar situations of lots with Crown road reserves. The development standard in clause 14 is to maintain the character of the particular land use zone and any unsupported deviation from it undermines the planning process.