Aesthete No. 9 Pty Limited v Blue Mountains City Council

Planning considerations

1. The EPA Act requires under s79C(1) that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: 1. the provisions of: 1. any environmental planning instrument, and 2. any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and 3. any development control plan, and 4. any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and 5. the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and 6. any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), 1. that apply to the land to which the development application relates, 2. the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, 3. the suitability of the site for the development, 4. any submissions made in accordance with this Act or the regulations, 5. the public interest.
2. Development on the Subject Site is subject to the Blue Mountains Local Environmental Plan 2015 (LEP 2015), which was made on 21 December 2015, and commenced on 15 February 2016.
3. Under LEP 2015 a larger eastern portion of the Subject Site is zoned E4 (Environmental Living), and a smaller western portion of the Subject Site is zoned E2 (Environmental Conservation).
4. Subdivision of the land zoned E4 on the Subject Site is permissible with development consent.
5. Under LEP 2015 a minimum lot size requirement of 1200m2 applies to the proposed subdivision of land on the Subject Site zoned E4. All lots within the proposed subdivision that sit wholly within the E4 zone (lots 3-16) are of that minimum size.
6. Also under LEP 2015, cl4.1E sets out provisions in relation to the subdivision of land in certain environmental protection zones. The clause applies to land in both zones E2 and E4.
7. LEP 2015 cl4.1E(4) provides that: 1. "despite clause 4.1, development consent must not be granted to the subdivision of land in zone E3 Environmental Management or zone E4 Environmental Living unless the consent authority is satisfied that each lot resulting from the subdivision will contain land (other than environmentally sensitive land) that has an area of at least 750 m² and is suitable for the location of a dwelling house (a development space)."
8. All lots within the proposed subdivision that sit wholly within zone E4 (lots 3-16) also satisfy the provisions of cl4.1E(4).
9. LEP 2015 cl4.1E sets out provisions relating to the subdivision of land in certain environmental protection zones, including land zoned E2.
10. Specifically, cl4.1E(3) of LEP 2015 provides that: 1. "development consent must not be granted to the subdivision of land to which this clause applies if any of the lots resulting from the subdivision will only contain land in zone E2 environmental conservation unless any such lot is to be provided for a public reserve, public road or other public purpose".
11. Within the proposed subdivision, lots 1, 2 and 17 contain land that is zoned E2. However, each of these lots also contains a portion of land zoned E4. Consequently, the provisions of cl4.1E(3) do not apply to the proposed subdivision.
12. LEP 2015 further provides, under cl4.1(3B), that: 1. "if a lot contains land in 2 or more zones, including land in zone E2 Environment Conservation, the land the area of land that is in zone E2 environment conservation is not to be included in calculating the lot size."
13. As a consequence of the provisions of cl4.1(3B), lots 1 and 17 may not be able to satisfy the requirement of 4.1E(4) that each lot resulting from the subdivision contain land (other than environmentally sensitive land) that has an area of at least 750 m² and is suitable for the location of a dwelling house (a development space).
14. Notwithstanding the above provisions of LEP 2015, because the development application was lodged on 4 November 2015, and prior to the commencement of LEP 2015, it is subject to the savings provision cl1.8A of LEP 2015, and must be determined under Blue Mountains Local Environmental Plan 1991 (LEP 1991).
15. Under LEP 1991 the Subject Site is zoned 'Residential Bushland Conservation' and subdivision of the land is permissible with development consent.
16. The western portion of the site contains a mapped area of land designated in LEP 1991 as 'Protected Area - Environmental Constraint Area'. This area was so designated following the identification of vegetation units of conservation significance in the Blue Mountains Environmental Management Plan Study of 1989.
17. Subdivision of land is subject to cl34 'Subdivision' under LEP 1991. That clause, inter alia, calls up a Density Control Provision for the Residential Bushland Conservation zone.
18. The Residential Bushland Conservation zone is subject to a Density Control Provision zone subscript which limits subdivision density to 8 lots per hectare.
19. The provisions of the Blue Mountains City Council Development Control Plan 2015 (DCP 2012) must also be considered in determining any development application associated with the Subject Site.
20. More specifically, Part C Environmental Management and Part C6 Water Management are of particular relevance to the proposed subdivision on the Subject Site.
21. The Court, as consent authority on appeal, is also required to fulfil the provisions of s80 of the EPA Act, including that: 1. "the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development".
22. The proposed development is integrated development under s91 of the EPA Act as a bushfire safety authority is required under s100B of the Rural Fires Act 1997 (RF Act).

Contentions

1. At the commencement of the hearing, the Parties advised that certain matters that had been in contention between them were no longer pressed by the Respondent. These were: 1. Vegetation - The Respondent noted that, following a review of expert testimony provided in the joint ecology experts report, it accepted that vegetation previously mapped within Schedule 3 of LEP 1991 as environmentally sensitive vegetation units 5A (Blue Mountains Heath and Scrub) and 5B (Blue Mountains Swamp) did not occur on the site. As a consequence, a contention that the proposed subdivision would have a significant environmental impact on a scheduled vegetation community at the western end of the site was not pressed by the Respondent. Further, the Respondent said that its submission that the Applicant should lodge a SEPP 1 objection with respect to this matter was also not pressed. 2. Watercourses - The Respondent had contended that the Subject Site included an ephemeral watercourse that required consideration in respect of stormwater management plans for the subdivision. However, the Respondent acknowledged that the features previously identified as watercourses did not meet the definition for a watercourse within LEP 1991. As a consequence, the Respondent did not press the contention concerning the potential impact of the proposed subdivision on watercourses. 3. Stormwater management - The Respondent noted that, as a consequence of its acceptance that the previously identified watercourse features were not present on the Subject Site, a contention on the adequacy of stormwater management plans for the subdivision was not pressed. The Respondent noted that other matters related to the management of stormwater under the proposed subdivision were able to be addressed through conditions of consent, and so satisfy the provisions of DCP 2012.
2. The remaining contentions addressed during the hearing were: 1. What conditions are required to manage bushfire risk associated with the proposed subdivision, including definition of Asset Protection Zones (APZs) for each of the proposed future lots? 2. Are the proposed conditions for bushfire risk management consistent with the provisions of LEP 1991? 3. What weight should be given to LEP 2015 and the zoning of the Subject Site in that instrument?

What conditions of consent are required to manage bushfire risk, including the definition of APZs?

1. As noted above in [31], the proposed development is integrated development under s91 of the EPA Act as a bushfire safety authority is required under s100B of the RF Act.
2. The Parties advised in the hearing that they had yet to receive the bushfire safety authority from the NSW Rural Fire Service (RFS).
3. Following the hearing, the Parties confirmed through written submission that: 1. the NSW RFS had, in a letter dated 9 December 2016, and in response to a communication from the Respondent, set out its 'general terms of approval' for the proposed subdivision in accordance with s91 of the EPA Act. The letter noted that the RFS response was deemed to be a bush fire safety authority as required under s100B of the RF Act. 2. receipt of the RFS correspondence had resolved all outstanding issues concerning the draft conditions of consent between the Parties.
4. The Parties agreed that compliance with the general terms of approval provided by the RFS should be included as a condition of consent should the proposed subdivision receive consent.
5. The Parties also confirmed that that they had reached agreement on draft conditions of consent, and these were provided to me in a written submission.

Are the proposed conditions for bushfire management consistent with the provisions of LEP 1991?

1. The Parties agreed that the general terms of approval provided by the RFS were consistent with the provisions of LEP 1991, other than with respect to the following two clauses: 1. LEP 1991 cl10.5(c), which provides for the location of bushfire protection measures on lots created through subdivision and management of their potential environmental impact. 2. LEP 1991 cl34.1(c), which provides for the configuration of subdivided lots with respect to land defined as development excluded land, and the location of "development ordinarily incidental and ancillary to a dwelling house" within any proposed future lot.

Are the proposed conditions for bushfire management consistent with LEP 1991 cl. 10.5(c)

1. LEP 1991 cl10.5(c) requires that: 1. "The Council shall not consent to subdivision, unless the bushfire protection measures required to protect the land to be subdivided are contained within a perimeter road or the boundaries of the property to be subdivided, and do not have any adverse environmental impact on any water supply catchment area or any development excluded land".
2. The RFS general terms of approval included, inter alia, the following requirement: 1. "This Bush Fire Safety Authority is issued on the basis of the provision of 20m wide asset protection zones (APZ) to the south and west of future dwellings on lots 1, 2 and 17, and to the south of future dwellings on lots 3 to 5".
3. The Applicant has proposed that the 20m wide APZs required under this general term of approval for proposed future lots 3, 4 and 5 would be provided in part within a 10m wide easement on the land adjoining the southern boundary of those lots, and otherwise would be on land within the boundary of the Subject Site.
4. The land adjoining the southern boundary of the Subject Site is known as 51 Queens Rd, Lawson, and is a lot established for the purposes of a future road.
5. The Respondent supported the Applicant's proposal to acquire an easement over 51 Queens Rd for use as an APZ for proposed future lots 3, 4 and 5.
6. However, these proposed APZs would not be consistent with the provisions of LEP 1991 cl10.5(c) because the proposed APZs: 1. would not be contained within either a perimeter road or the boundaries of the property to be subdivided; 2. may have an adverse environmental impact on development excluded land along the southern boundary proposed future lots 4 and 5.
7. In response to this, the Applicant tendered, a written objection under State Environmental Planning Policy No 1 (SEPP 1) - Developments Standards to vary the application of LEP 1991 cl10.5(c).

Should the SEPP1 objection to BMCC LEP 1991 cl. 10.5(c) be upheld?

1. The requirements to uphold a SEPP 1 objection, and the related case law, have been comprehensively reviewed by Preston CJ in the case of Wehbe v Pittwater Council [2007] NSWLEC 827 [36]-[51].
2. Preston CJ, noted in that case that for the Court, exercising the functions of the consent authority, those requirements are: 1. The Court must be satisfied that the objection is 'well founded', being an objection in writing, and such that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The objection should also state the grounds of the objection. 2. The Court must be of the opinion that 'granting of consent to the development application is consistent with the aims' of SEPP1, as set out in clause 7 of the SEPP. Preston CJ noted that the aims and objectives of SEPP 1 are to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in a particular case, be unreasonable or unnecessary, or tend to hinder attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act. Those sections of the EPA Act encourage: 1. in terms of section 5(a)(i), the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment. 2. In terms of section 5(a)(ii), the promotion and coordination of the orderly and economic use of developed land. 1. The Court must be satisfied that a consideration of the matters in clauses 8(a) and 8(b) of SEPP 1 justifies the upholding of the SEPP 1 objection. These clauses provide: 1. 'whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and 2. The public benefit of maintaining the planning control adopted by the environmental planning instrument.
3. In Wehbe v Pittwater Council, Preston CJ also summarised the approaches that should be applied to determine whether an objection under SEPP 1 was "well founded" and consistent with the aims of SEPP 1. These were to establish that: 1. the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary. 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable. 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance the standard is unnecessary and unreasonable. 5. 'the zoning of particular land' was unreasonable and inappropriate so that a development standard appropriate for that zoning was also unreasonable and unnecessary as it applied to that land and that compliance with the standard in that case would be unreasonable or unnecessary.
4. The grounds for the SEPP 1 objection to LEP 1991 cl10.5(c) were provided to the Applicant in writing. The objection stated that compliance with the development standard was unnecessary because: 1. while there are no expressed objectives for cl10.5(c), the proposal was consistent with the objectives of the Subject Site's land use zoning (Residential Bushland Conservation); 2. the proposal minimises adverse impacts of bushfire protection measures by placing the APZ partly within a corridor intended for use as a road. 3. the proposal reduces the extent to which the APZs must be placed within development excluded land on the Subject Site.
5. I agree with the Applicant that these reasons support its position that the development standard is unnecessary and so find that the SEPP 1 objection is well founded.
6. I also find that, for the reasons set out in [50], the SEPP 1 objection is consistent with the aims of SEPP1, as set out in clause 7 of SEPP 1, because it provides flexibility in the application of cl10.5(c) in circumstances where strict compliance with that standard would be unnecessary.
7. The Applicant also said that the upholding of the SEPP 1 objection would not give rise to any matter of significance for State or regional environmental planning, and there would be no public benefit to requiring strict compliance with cl10.5(c). This position was not challenged by the Respondent.
8. For the reasons set out above, I conclude that the SEPP 1 objection to LEP 1991 cl10.5(c) is well founded and should be upheld.
9. Consequently, I also conclude that the proposal is not in breach of LEP 1991 in relation to cl10.5(c), subject to the SEPP 1 objection provided by the Applicant.
10. Subsequent to the hearing, the Applicant provided a written submission transmitting a copy of a Deed of Grant of Easement made on 5 January 2017 with the owners of the lots at 51 and 53 Queens Rd confirming that it had secured, for the purposes of creating APZs for bushfire protection: 1. a 10.06m wide bushfire easement over the eastern end of 51 Queens Rd (adjoining proposed future lots 1,2 3, 4 and 5 (part)) in favour of 54 Luchetti Rd. 2. a 10m wide bushfire easement over the eastern end of 53 Queens Rd (adjoining proposed future lots 1 and 17 (part)) in favour of 54 Luchetti Rd.

Are the proposed conditions for bushfire management consistent with LEP 1991 cl34.1(c)

1. LEP 1991 cl.34.1(c) requires that : 1. "The Council may consent to subdivision of any land that is zoned Bushland Conservation or Residential Bushland Conservation only if each new lot proposed to be created, (other than lots for a public purpose, and other than lots created as part of a cluster housing development), and intended to be the site of a dwelling house, includes land with a minimum area of 750m2, no part of which is development excluded land, and which is so configured as to be capable of being the site of a dwelling house and accommodating development ordinarily incidental and ancillary to a dwelling house".
2. The Applicant's subdivision plans tendered during the hearing confirmed that each of the 17 future lots to be created under the proposed subdivision are proposed to be the site of a future dwelling house.
3. The Applicant's subdivision plan, which the Respondent did not challenge, illustrated that each of the proposed future lots included a minimum of 750m2 of land, no part of which was development excluded land.
4. However, the Parties did not agree on the interpretation of the following portion of cl34.1(c): 1. "and which is so configured as to be capable of being the site of a dwelling house and accommodating development ordinarily incidental and ancillary to a dwelling house".
5. It was the position of the Respondent, confirmed in a written submission following the conclusion of the hearing, that the intention of the Council, as reflected in the drafting of both clauses 34.1(c) and 34.1 (d) of LEP 1991, was that any dwelling house proposed to be erected on a lot created in accordance with cl34.1(c), as well as any associated development ordinarily incidental and ancillary to a dwelling house, should be on land that is not development excluded land.
6. The Respondent said that, in its interpretation, the Applicant's proposal for the creation of APZs on development excluded lands for each of lots 5, 6, 7, 8 and 9 would be contrary to the provisions of cl34.1(c).
7. The Respondent said that because of this potential breach of LEP 1991, the Applicant should have supported its proposal for the location of the APZs with a SEPP 1 objection to vary the application of cl.34.1(c) and so facilitate the granting of consent.
8. However, it was the position of the Applicant, supported by the opinion of its expert planning witness, Ms Natasha Baker, expressed in the joint expert planning report, that the phrase "so configured as to be capable of being the site of a dwelling house and accommodating development ordinarily incidental and ancillary to a dwelling house": 1. should apply to the total area of each of the proposed future lots, and 2. did not restrict the location of "development ordinarily incidental and ancillary to a dwelling house" to areas that were not development excluded lands .
9. The Applicant contended that its interpretation of the clause was further supported by the following points: 1. under LEP 1991, the definition of"'development ordinarily incidental and ancillary to a dwelling house" includes, inter alia, the clearing of vegetation for fire protection zones, as are necessary in order to meet the requirements of LEP 1991 cl10.5; 2. LEP 1991 cl10.5(c) states that "the Council shall not consent to subdivision, unless the bushfire protection measures required to protect the land to be subdivided are contained within the perimeter road or the boundaries of the property to be subdivided, and do not have any adverse environmental impact on any water supply catchment area or any development excluded land".
10. The Applicant said that, based on these provisions, LEP 1991 did permit the placement of bushfire protection measures, including clearing of vegetation for fire protection zones, within development excluded lands, provided that these did not give rise to adverse environment impacts.
11. Having given consideration to the positions of both Parties, it is my view that the position of the Applicant is the more satisfactory interpretation of cl34.1(c), as it is consistent with other provisions of LEP 1991 such as cl10.5(c), as well as the definition of "development ordinarily incidental and ancillary to a dwelling house" within LEP 1991.
12. It was the position of the Applicant, expressed in its SEPP 1 objection concerning cl10.5, and supported by the opinion of its bushfire expert Mr O'Toole in the joint bushfire experts report, that there would be no adverse impacts arising from the requirements for APZs to be created on development excluded lands on lots 4-9.
13. Indeed, it was the position of the Respondent, expressed in its written submission in relation to the interpretation of cl34.1(c), that the land on which the Applicant proposed to create APZs within each of lots 4, 5, 6, 7, 8 and 9 is classified as "development excluded land" only on the basis that it has a slope in excess of 20%, and does not meet any of the other criteria for classification as "development excluded land", such as those lots containing environmentally sensitive vegetation, the habitat of any threatened species or any significant landscape feature.
14. The Respondent's written submission noted that, were the Applicant to have prepared a SEPP1 objection seeking to vary the application of cl34.1(c), and submitted that the proposed APZs for lots 3, 4, 5, 6, 7, 8 and 9 not be confined to the areas of each lot that were not development excluded land with a minimum 750m² area, such an objection would be appropriately upheld.
15. Consequently I conclude that the proposed APZs for lots 3, 4, 5, 6, 7, 8 and 9 would not have any adverse environmental impact on any water supply catchment area or any development excluded land, and that the proposed conditions for bushfire management on these lots are consistent with LEP 1991 cl34.1(c).

What weight should be given to LEP 2015?

1. As previously noted, the Parties agreed that the development application should be determined under the LEP 1991.
2. However, the Respondent noted that, as LEP 2015 had commenced operation shortly after lodgement of the development application for subdivision of 54 Luchetti Ave, weight should be given to LEP 2015, the land use zones should be applicable to the Subject Site, and the provisions of LEP 2015 should be applicable thereto .
3. As noted earlier in [12], under LEP 2015 a larger eastern portion of the Subject Site is zoned E4 (Environmental Living), and a smaller western portion of the Subject Site is zoned E2 (Environmental Conservation). Subdivision of the Subject Site is permissible with development consent, subject to other provisions of the LEP 2015.
4. The Respondent noted that, should the proposed subdivision plan receive consent, any future development application for the construction of dwellings on any of the proposed lots would be determined under LEP 2015 and its zonings, including the E2 zone applicable to part of proposed future lots 1, 2 and 17.
5. The Respondent said that the E2 zoning of the western portion of the Subject Site had been based on vegetation mapping that indicated the presence of environmentally sensitive vegetation units within that area, and which it now accepted are not present.
6. The Respondent also said that it would be appropriate to consider a rezoning of the E2 zoned lands on the Subject Site, and that given the remainder of the lots on the Subject Site were zoned E4, this E4 zoning may be appropriate for all of lots 1, 2 and 17.
7. The Applicant said that while the E2 zoning of some lots under LEP 2015 would present a constraint to future development of those lots, the proposed subdivision should, nevertheless, be determined under LEP 1991, as agreed by both Parties. The Applicant contended that the provisions of LEP 2015 should not present an impediment to the Court granting consent to the proposed subdivision at 54 Luchetti Ave.
8. Having given consideration to the implications of the land use zones and other provisions of LEP 2015 to the proposed subdivision, and given the Respondent's acknowledgement that the previously mapped environmentally sensitive vegetation units are not found on the Subject Site, I conclude that an application for rezoning of the E2 zoned areas of the Subject Site is likely to succeed.
9. Consequently, I conclude that, notwithstanding the current zonings and related provisions of LEP 2015 applying to the Subject Site, consideration of LEP 2015, its zonings and provisions do not present an impediment to subdivision of the Subject Site as proposed by the Applicant and as permitted under LEP 1991.

Conclusion

1. Based on the above considerations, I am satisfied that: 1. the Parties have agreed draft conditions of consent, including conditions for management of bushfire risk that are consistent with the general terms of approval provided by the RFS in a bush fire safety authority as required under s100B of the RF Act; 2. the draft conditions of consent agreed by the Parties, including those for management of bushfire risk, are consistent with the provisions of LEP 1991, or have been subject to a SEPP 1 objection {upheld} to vary a relevant provision of LEP 1991; 3. the provisions of LEP 2015, including the zonings applicable to the Subject Site, do not present an impediment to subdivision of the Subject Site as proposed by the Applicant and as permitted under LEP 1991.
2. I conclude that consent should be granted to the proposed subdivision of land at 54 Luchetti Avenue, Hazelbrook, subject to the conditions of consent agreed by the Parties and included at Annexure 'A' to this judgement.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA S/45/2015 and subject to the conditions of consent annexed hereto as Annexure 'A'. 3. The exhibits are returned with the exception of Exhibit 8. …………………………. Michael Chilcott Commissioner of the Court 184360.16 Chilcott (C) (170 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: 03 May 2018