Altre Partners Pty Ltd v Northern Beaches Council

Environmental Planning and Assessment Act 1979

1. Section 4.15(1)(a) requires: (1) Matters for consideration - general 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 - (a) the provisions of - (i) any environmental planning instrument, and (ii) 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 Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.

Environmental Planning and Assessment Regulation 2021

1. The following provisions of the EP&A Regulation 2021 are of relevance in this appeal: 1. subclause 37(7) which concerns amendments to development applications as follows: 37 Amendment of development application …. (7) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

Warringah Local Environmental Plan 2011

1. The Subject Site is a deferred matter under the provisions of WLEP 2011, and so development on the Subject Site is subject to the provisions of WLEP.

Warringah Local Environmental Plan 2000

1. As discussed above (at [12]), the provisions of WLEP require that: 1. under the provisions of cl 12, certain matters are considered before consent is granted, and which are: (1) Before granting consent for development the consent authority must be satisfied that the development is consistent with - (a) any relevant general principles of development control in Part 4, and (b) any relevant State environmental planning policy described in Schedule 5 (State policies). (2) Before granting consent for development, the consent authority must be satisfied that the development will comply with - (a) the relevant requirements made by Parts 2 and 3, and (b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out. (3) In addition, before granting consent for development classified as - (a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or (b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement, but nothing in a description of desired future character creates a prohibition on the carrying out of development. 1. as required under the provisions of cl 12(1)(a) of the WLEP, the Proposed Development must be consistent with the relevant general principles of development control in Part 4, which relevantly in this appeal are: 1. the provisions of cl 56 of WLEP in relation to retaining distinctive environmental features on sites, which are: Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land. In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses. 1. the provisions of cl 58 of WLEP, which are: Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species. 1. the provisions of cl 63, which relevantly in this appeal include: Landscaped open space is to be of such dimensions and slope and of such characteristics that it will - …. • conserve significant features of the site. 1. the provisions of cl 66 of WLEP, which are: Buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise. In particular - side and rear setbacks are to be progressively increased as wall height increases; large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief; and appropriate landscape plantings are to be provided to reduce the visual bulk of new buildings and works." 1. the provisions of cl 76 of WLEP, in relation to stormwater management, which are: Stormwater runoff from development is to discharge to a Council drainage system approved by the Council for the purpose and is to have minimal impact on any receiving stormwater infrastructure, watercourse, stream, lagoon, lake, waterway or the like. Water quality control measures are to be provided in accordance with the Northern Beaches Stormwater Management Plan. In particular, stormwater runoff is to be controlled using on-site stormwater detention in accordance with the Council's "On-site Stormwater Detention Technical Specification", except where it is demonstrated that - • the discharge from the development will not pass through a drainage control structure such as a pipe, culvert, bridge, kerb and gutter or natural drainage system before reaching receiving waters such as the ocean, or • the design of the stormwater drainage system is in accordance with the Council's standard specification for engineering works (AUSPEC 1), or • the additional runoff created by the development will not adversely affect any natural or constructed drainage system either downstream or upstream of the development site, or • the total post-development impervious area (roof, driveway, paving etc) will be less than 35% of the total site area, or • the additional impervious surface resulting from the development will not exceed 50m2 in area, or • the soil conditions are such that stormwater can be retained and disposed of on-site, but only if the case is established by a geotechnical report, or • the site is within an established 100-year flood plain and the local drainage system is not adversely affected by lesser storm events. Stormwater detention systems are to be visually unobtrusive and integrated with site landscaping. Development must drain via gravity to a Council constructed or natural drainage system, unless drainage to such a system is not possible, in which case stormwater may be retained and disposed of on-site, where it can be demonstrated soil conditions so allow. Development is to have regard to the Council's natural drainage systems, drainage easements and public drainage systems and be in accordance with the Council's draft policy "Drainage Easements and Building over Constructed Public Drainage Systems". 1. consistent with the provisions of cl 12(2)(b), the relevant development standards in the B2 Oxford Falls Valley locality statement are: 1. Housing Density, which relevantly for the current appeal, provides: The maximum housing density is 1 dwelling per 20 ha of site area, except - (a) where this standard would prevent the erection of one dwelling on an existing parcel of land, being all adjacent or adjoining land held in the same ownership on 8 March 1974 and having a combined area of not less than 2 ha. 1. Building Height, which relevantly in the current appeal provides: Buildings are not to exceed 8.5 metres in height, where height is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and the natural ground level below. Buildings are not to exceed 7.2 metres from natural ground level to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas located wholly within a roof space), but this standard may be relaxed on sites with slopes greater than 20 per cent within the building platform (measured at the base of the walls of the building), provided the building does not exceed the 8.5 metre height standard, is designed and located to minimise the bulk of the building and has minimal visual impact when viewed from the downslope sides of the land. 1. Building Front Setback, which relevantly in the current appeal provides: Development is to maintain a minimum front building setback. The minimum front building setback to all roads is 20 metres. 1. Rear and Side Building Setback, which relevantly in this appeal provides: Development is to maintain minimum rear and side building setbacks. The minimum rear and side building setback is 10 metres. 1. Landscaped Open Space, which relevantly in this appeal provides: The minimum area of landscaped open space is 30 per cent of the site area. 1. consistent with the provisions of cl 12(3)(b), the Proposed Development must be consistent with the desired future character (DFC) described in the relevant Locality Statement, which for the B2 Oxford Falls Valley locality is: The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows. Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway. The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged. A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape. Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.

Warringah Development Control Plan 2000

1. I note that development on the Subject Site is also subject to the provisions of Warringah Development Control Plan 2000 (WDCP) which provides guidance and controls for the design and assessment of proposed development and applies to all land to which WLEP applies. The Respondent has raised no contentions in relation to the provisions of WDCP.

Warringah Council Policy No PL 740 Waterways - Protection of Waterways and Riparian Land Policy

1. Policy No PL 740 Waterways in relation to the Protection of Waterways and Riparian Land guides the management, development and protection of waterways and their associated riparian land in the Warringah local government area. It provides guidance on managing impacts from development, including buffers, in relation to wetland and riparian lands.

Northern Beaches Council Water Management for Development Policy

1. The Northern Beaches Council Water Management for Development Policy states that it supports the Council's commitment to protecting and enhancing the aquatic and terrestrial natural environment while ensuring protection of public and property across the Northern Beaches. The policy identifies principles, and corresponding planning controls, that aim to deliver effective integrated management of stormwater, rainwater, groundwater and wastewater.

Contentions

1. In its opening, the Respondent had noted, inter alia, in relation to the provisions of cl 12 of WLEP, which formed the basis for the principal contentions in the appeal, that: 1. concerning the provisions of cl 12(2)(a) of WLEP (see above at [17(1)]), there were no provisions of Parts 2 and 3 of WLEP that were the subject of contentions in the appeal; and 2. the Proposed Development complied with the development standards set out in the Locality Statement for the B2 Oxford Falls locality, identified above (at [17(2)(c)]; 3. for the purposes of s 4.15(1)(a) of the EP&A Act, the following further clauses of WLEP and policies of Northern Beaches Council were matters for consideration by the consent authority, or the Court on appeal: 1. cll 63, 66 and 76 of WLEP (see above at [17(2)]); 2. Northern Beaches Council Water Management for Development Policy (see above at [20]); 3. Warringah Council Policy No PL 740 Waterways - Protection of Waterways and Riparian Land Policy (see above at [19]).
2. The provisions of subcl 12(1)(a) of WLEP (see above at [17(1)]) requiring that the development is consistent with any relevant general principles of development control in Part 4, and the provisions of subcl 12(3) (also above at [17(1)]), give rise remaining contentions in the appeal (noted above at [12]), and which require the Court to resolve the following questions: 1. is the Proposed Development consistent with the provisions of cl 56 of WLEP (see above at [17(2)(a)]), which requires the retention of distinctive environmental features on the Subject Site, and in particular: 1. has the Proposed Development been designed to retain and complement any distinctive environmental features of the Subject Lot and on adjoining and nearby land; and 2. has the Proposed Development been designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses. 1. is the Proposed Development consistent with the provisions of cl 58, concerning the protection of existing flora, and, in particular, has the Proposed Development been sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species; and 2. is the Proposed Development consistent with the desired future character of the area as described in the B2 Oxford Falls locality statement (see above at [17(4)]).
3. Each of these questions will be considered in turn below.

Is the Proposed Development consistent with the provisions of cl 56 of WLEP?

1. The provisions of cl 56 of WLEP were provided above (at [17(2)(a)]), and the Respondent contended that, contrary to those provisions, the Proposed Development: 1. included the proposed removal of native bushland; 2. would not retain and complement the distinctive environmental features of the Subject Site; and 3. would not complement the CUS located on land adjoining the location of the Applicant's proposed dwelling.
2. The Respondent further submitted that: 1. in addition to retaining and complementing any distinctive environmental features, the provisions of cl 56 further required that the Proposed Development should be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses; and 2. the Proposed Development was not designed to incorporate and be sympathetic to those features.
3. While the Dictionary in WLEP does not define "distinctive" environmental features: 1. the terms of cl 56 identify that the environmental features to which the clause applies include rock outcrops, remnant bushland and watercourses; and 2. the Respondent submitted that the Parties' experts also agreed that the CUS, remnant native vegetation and rock outcrops were the distinctive environmental features on the Subject Lot.
4. Based on my observations of the Subject Lot during a site view undertaken at the commencement of the hearing, I concur that the CUS, remnant native vegetation and rock outcrops are the distinctive environmental features on the Subject Lot.
5. As noted above (at [22(1)]), the consistency or otherwise of the Proposed Development with the provisions of cl 56, requires that the Court consider two secondary questions: 1. first, has the Proposed Development been designed to retain and complement the CUS, remnant native vegetation and rock outcrops of the Subject Lot and on adjoining and nearby land? 2. secondly, has the Proposed Development been designed to incorporate or be sympathetic to the CUS, remnant native vegetation and rock outcrops on the Subject Lot?
6. I will consider first each of these secondary questions in turn.

Has the Proposed Development been designed to retain and complement the CUS, remnant native vegetation and rock outcrops of the Subject Lot and on adjoining and nearby land?

1. The terms of cl 56 of WLEP require that the Proposed Development should both retain and complement the environmental features of the Subject Lot and on adjoining and nearby land.
2. Because the Subject Lot is occupied by undisturbed vegetation and natural rock outcrops, most applications for a permissible use on the site, other than for a low intensity/low impact use such as beekeeping, and certainly for a dwelling, will require some vegetation removal.
3. A proposed dwelling is also likely to require some excavation to create levels upon which a dwelling could be constructed.
4. In the current appeal, the Proposed Development includes the proposed clearing of 0.39 ha of that vegetation, and requires certain excavation, including excavation of some rock areas on the site.
5. The Applicant's biodiversity development assessment report stated that the Subject Lot contained the following areas of various plant community types (PCTs): 1. PCT 1803 - Banksia - Needlebush - Tea-tree damp heath swamps on coastal sandstone plateaus of the Sydney basis (area 0.08 ha); 2. PCT 1825 - Coastal Sandstone Plateau Rock Plate Heath (area 0.11ha); 3. PCT 1824 - Mallee - Banksia - Tea-tree - Hakea heath-woodland of the coastal sandstone plateaus of the Sydney basin (area 1.31 ha); and 4. PCT 1083 - Red Bloodwood - scribbly gum heathy woodland on sandstone plateaux of the Sydney Basin Bioregion (area 1.28 ha).
6. The Applicant has proposed that the following areas of vegetation should be cleared for the Proposed Development: 1. 0.04 ha (or around 36%) of PCT 1825 Coastal Sandstone Plateau Rock Plate Heath; 2. 0.25 ha (or around 19%) of PCT 1824 Mallee - Banksia - Tea-tree - Hakea heath-woodland of the coastal sandstone plateaus of the Sydney basin; and 3. 0.1 ha (or around 7%) of PCT 1083 Red Bloodwood - scribbly gum heathy woodland on sandstone plateaux of the Sydney Basin Bioregion.
7. Any new dwelling house on the Subject Lot that is consistent with the terms of the DFC statement would require the clearing of some vegetation. If a consent authority were to apply the terms of the B2 DFC statement literally, and so protect all vegetation from clearing, the DFC statement would create a prohibition on the carrying out of any development on the site.
8. The provisions of cl 12(3) of WLEP note that nothing in a description of desired future character creates a prohibition on the carrying out of development. Noting this, I assess that it would be unreasonable to require that no clearing of vegetation be undertaken in circumstances where a dwelling house is a permissible use on the Subject Site.
9. Indeed, if the retention of 100% of vegetation, or some other environmental feature, on the Subject Site were the intended outcome to be achieved from developments on the Subject Site then the potential uses of the Subject Site would have excluded uses that required vegetation clearing, or removal of other environmental features. That is not the case in the current appeal.
10. The question then becomes if a development is to retain the environmental features of the site, but not be prohibited from some removal of those features, how should the acceptability of the development's impacts be undertaken?
11. In my assessment, the requirement under cl 56 of WLEP to retain the environmental features of the site can be satisfied if the following two criteria are met: 1. the environmental features of the Subject Site, such as specific PCTs, must remain present on the Subject Site following completion of the development; and 2. the retained environmental features should be capable of enduring in perpetuity.
12. Applying these criteria to the assessment of the Proposed Development's compliance with the terms of cl 56 of WLEP, I have concluded that: 1. the environmental features of the Subject Lot, being the individual PCTs identified above at [34], as well as the CUS and rock outcrop features, on the site and on adjoining land will remain present on the Subject Site following completion of the Proposed Development; 2. the Applicant has stated its intent that the rocky outcrops on the Subject Lot would not be excavated, and if this outcome is confirmed they will endure and so be retained for the purposes of cl 56 of WLEP; 3. the CUS is located at some distance from the Applicant's Proposed Development, and if the Applicant's proposed stormwater management plans are implemented and achieve their designed water quality outcomes (which I consider further below in relation to the provisions of cl 12(3) concerning the DFC for the B2 locality - see [93] and [94]), then because its extent is not impacted by the Proposed Development, the CUS will endure and so be retained for the purposes of cl 56 of WLEP; and 4. the proportion of each of the PCTs identified above (at [34]) that will remain on the site following the Applicant's proposed vegetation clearing works will be 100% for PCT 1803, 64% for PCT 1825, 81% for PCT 1824, and 93% for PCT 1083, and 5. notwithstanding the small areas of these communities to be found on the Subject Site, both currently and following completion of the Proposed Development, the Applicant's amended biodiversity management plan provides management measures, including permanent protective fencing, that, in my assessment, would support the enduring presence of these communities on the Subject Site.
13. Consequently, I am satisfied that the Proposed Development has been designed to retain the distinctive environmental features of the Subject Lot and on adjoining and nearby land.
14. The terms of cl 56 also require that any development on the Subject Site should be designed to complement any distinctive environmental features of the Subject Lot and on adjoining and nearby land.
15. The dictionary in WLEP does not define what should be achieved by the Proposed Development if it is to "complement" the distinctive environmental features of the site.
16. Biscoe J, in Al Amanah College Incorporated v Minister for Education and Training [2011] NSWLEC 189 (referred to hereafter as 'Al Amanah College'), stated (at [51]) in relation to the provisions of cl 56 of WLEP as follows: "In my view, "complement" in this context means to fit in, go with something else (Australian Oxford English Dictionary) or supplement appropriately or adequately (Bryan Garner, A Dictionary of Modern Legal Usage, Oxford University Press, 1987, 132)."
17. The statement by Biscoe J is consistent with the meanings of "to complement" from the Macquarie Dictionary (2023 on-line edition), which, applied to the provisions of cl 56, would require that the Proposed Development should "suit or go well with", or "enhance the good qualities of" the Subject Site.
18. The Respondent submitted that the term "complement" should be understood in its ordinary meaning as "that which completes or makes perfect; the quantity or amount that completes anything" relying on a definition from the Macquarie Dictionary (1982 ed).
19. The question of whether the Proposed Development would complement the distinctive environmental features of the Subject Lot was the subject of expert evidence and submissions from the Parties during the hearing, including: 1. in response to questions from the Respondent, the Applicant's expert ecologist, Mr Sheather-Reid: 1. agreed that the requirement for the Proposed Development to complement the features of the Subject Site required that: 1. the Proposed Development should improve or contribute positively to the features of the Subject Site; and 2. an outcome that provided no or minimal impact on those features, was insufficient for the Proposed Development to demonstrate that it complemented those features. 1. agreed that the Proposed Development would remove 0.39Ha of vegetation including the removal of some vegetation on rocky outcrops for purposes of establishing asset protection zones; 2. stated that the Applicant's proposed water management swales structures would facilitate the infiltration of water from the Proposed Development into the soil and, as a consequence, into the CUS, thus complementing the CUS. 1. in response to a question from the Applicant as to whether its proposed water management swales would impinge on rocky outcrops, Mr Sheather-Reid stated that the swales would need to be placed so that they were located clear of any rocky outcrops; 2. also in relation to the Applicant's proposed water management swales, and in response to a question from the Respondent, the Applicant's stormwater engineering expert, Mr Wachjo, stated that: 1. the location of the proposed water management swales as illustrated in the Applicant's landscape plans was not precise; 2. the best route for the location of the swales would need to be determined on the basis of ecological advice; and 3. notwithstanding ecological advice provided, the final route to be followed by the swales must have a continuous fall so ensure their functionality. 1. the Parties' landscape experts agreed that: 1. any works to restore areas of native vegetation on the Subject Lot should be based upon the use of 100% sandstone heath species; 2. as stated in their joint report: 1. "any proposed development on the site would trigger ground disturbance and the need for APZ generated clearing and drainage requirements"; and 2. "an alternative architectural design (smaller) would generate less impacts"; and 3. their "recommended amendments to landscape works and proposed planting are aimed at reducing the impacts of the proposal as submitted before us". 1. the Applicant submitted, inter alia, in closing that: 1. a design intent of the Proposed Development was to ensure that there would be no impact on rocky outcrops on the Subject Lot; 2. the Applicant did not embrace the agreed recommendation of the landscape experts (see above at [(4)(a)]) that any works to restore areas of native vegetation on the Subject Lot should be based upon the use of a 100% sandstone heath species, but rather proposed the use of "100% native" plant species for such works which it said: 1. should be sufficient for the purposes of restoration works; and 2. should not in itself provide a reason for refusal of the Proposed Development. 1. the Proposed Development included: 1. no clearing of the CUS, along with a protective buffer to the CUS with a minimum setback of works from the edge of the CUS of 20m; 2. a stormwater management design that would maintain water quantity and quality to the CUS catchment hydrology within a 5% tolerance. 1. the Proposed Development would enhance the environment of the Subject Lot by: 1. the creation of a conservation area within the Subject Site, and outside the APZ areas, through registration of a covenant on title as described in the Applicant's amended biodiversity management plan; 2. a program of works to remove all invasive and environmental weeds; 3. compensatory plantings outside the APZ including works to restore areas of vegetation identified as being in poor condition; 4. a bushland regeneration program, including weed removal, to facilitate regeneration of native vegetation from the existing soil seedbank; and 5. in perpetuity protection of biodiversity on site through the installation of fencing on the boundaries of the APZ. 1. The Respondent submitted that: 1. the Applicant had not demonstrated that: 1. the Proposed Development would complement the CUS, but rather had provided evidence that the CUS would not be negatively impacted; 2. either the vegetation or the rocky outcrops on the Subject Site would be complemented by the Proposed Development. 1. the expert evidence in the proceedings was that: 1. the Proposed Development was designed to avoid impacts on the rocky outcrops; 2. there was no certainty as to the precise form or location of the Applicant's proposed stormwater management swales; and 3. the Applicant's stormwater drainage engineer, Mr Wachijo, was unable to confirm whether or not there was a requirement to excavate any part of the rocky outcrop to install the swale, identified as SW1, because the Applicant's plans had not detailed how the swale would transition from higher areas to lower areas, including in relation to the potential impacts on rocky outcrops. 1. the scale of native vegetation clearing required under the Proposed Development, which is a consequence of the APZ requirements and size of the proposed dwelling, were not consistent with the provisions of cl 56 of WLEP which include the requirement for the development to complement the distinctive environmental features of the Subject Lot; 2. based on the above points (at [a] to [c]) the Court could not be satisfied that the Proposed Development would complement any of the distinctive environmental features of the Subject Lot.
20. I have considered the evidence provided by the Parties experts, both during the hearing and in their joint expert reports tendered as evidence, along with the submissions from the Parties as outlined above (at [48]), and have concluded as follows: 1. I agree with the Respondent's submission that the requirement for the Proposed Development to complement the distinctive environmental features of the Subject Site requires something more than the development achieving no or minimal impact on those features. In my view, this is consistent with the opinion of Biscoe J in Al Amanah College, and with the concession by the Applicant's ecologist Dr Sheather-Reid in cross examination (see above at [48(1)]); 2. I further agree with the Respondent that, in order for the Proposed Development to complement the distinctive environmental features of the Subject Lot, it should, in some form, improve or contribute positively to the features of the Subject Site; 3. noting the evidence of the Applicant's stormwater engineer, Mr Wachijo, that the location and form of the swale SW1 in the Applicant's plans is not precise and is unable to be confirmed without further ecological advice: 1. and notwithstanding the Applicant's intent to avoid impacts, I cannot be satisfied that the Proposed Development would indeed avoid potential impacts on rocky outcrops on the Subject Site; and 2. if I am unable to be satisfied that potential impacts on the rocky outcrops can be avoided, I am unable to be satisfied that the Proposed Development would complement those distinctive environmental features even if the features following excavation were largely retained. 1. noting both the agreed evidence of the landscape experts concerning the recommended use of 100% sandstone heath species, and the Applicant's preference not to adopt this recommendation: 1. I accept that the Applicant's landscaping plans seek to minimise impacts on vegetation communities on the Subject Lot; but 2. I am not satisfied that the Applicant's Proposed Development, which includes its plans for vegetation restoration on the Subject Lot, are designed to complement the vegetation communities on the site. In my assessment this is a missed opportunity to complement that distinctive environmental feature of the Subject Site. 1. in relation to the CUS, and measures proposed by the Applicant to manage potential stormwater impacts of the Proposed Development: 1. I note the submission of the Applicant in closing (see above at [48(5)(c)]) that the design of its stormwater management systems will provide a minimum 20m buffer to the CUS and water quality and quantity outcomes would mimic those of the existing catchment hydrology to the CUS with a tolerance of 5%; but 2. I assess that these proposed stormwater management arrangements are, at best, an impact minimisation measure and, contrary to the opinion of Mr Sheather-Reid (see above at [48(1)(c)]), do not constitute evidence of a measure that would complement the CUS.
21. Based on the above conclusions (at [49]), and consistent with the submissions of the Respondent: 1. I cannot be satisfied that the Proposed Development has been designed to complement the distinctive environmental features of the Subject Lot and on adjoining and nearby land as required under cl 56 of WLEP; 2. notwithstanding my conclusion above (at [42]) in relation to retention of distinctive environmental features, I am satisfied that the Proposed Development does not meet the dual outcomes required under the provisions of cl 56 of WLEP that it be designed to retain and complement any distinctive environmental features of the Subject Lot and on adjoining and nearby land.
22. While I note the Applicant's submissions in relation to cl 12 of WLEP (following cl 12(3)(b)) that the requirements of the clause should be viewed as positive and not prohibitive, that statement pertains to the compliance concerning the description of future character in cl 12(3) and does not relate to the provisions of cl 12(1)(a) concerning satisfaction with the general principles in Part 4, which include those of cl 56.

Has the Proposed Development been designed to incorporate, or be sympathetic to, the CUS, remnant native vegetation and rock outcrops on the Subject Lot?

1. I have also considered whether the Proposed Development been designed to incorporate or be sympathetic to the CUS, remnant native vegetation and rock outcrops on the Subject Lot and on adjoining and nearby land as required under the second limb of cl 56 of WLEP (see above at [17(2)(a)]).
2. Like the term compatibility, which has been the subject of consideration by the Court in various cases, including by Roseth SC in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (at [22]) (hereafter referred to as Project Venture), the requirement for a development to be sympathetic to its surroundings does not require it to be the same as that context, but rather, in my assessment, to take cues from its context, such that it sits harmoniously within that context.
3. In essence, for a development to be sympathetic to the environmental features of its context is for it to be in keeping with, or relate harmoniously to, that context.
4. As already discussed above (at [49(1)]) in relation to whether the Proposed Development is designed to complement the distinctive environmental features of its site and adjoining and nearby land: 1. I agree that the Proposed Development seeks, and in many instances achieves, avoidance of potential impacts on the distinctive environmental features of the Subject Lot; but 2. the requirements of cl 56 of WLEP require more than avoidance of potential impacts.
5. Consistent with my conclusions above (at [49]), and relying on those and my findings above (at [50]), I am unable to be satisfied that the Applicant's Proposed Development incorporates, or is sympathetic to, the distinctive environmental features on the Subject Lot and on adjoining and nearby land.
6. I note again, and in particular, the evidence of Mr Wachijo (see above at [48(3)]) in relation to the lack of precision in the design and location of the Applicant's stormwater management swales, and potential impacts on rocky outcrops on the Subject Lot.
7. Consequently, I also conclude that the Proposed Development does not comply with the second limb of cl 56 of WLEP, and I am satisfied that it has not been designed to incorporate or be sympathetic to environmental features on the Subject Lot and on adjoining and nearby land,

Conclusion in relation to the provisions of cl 56 of WLEP

1. Based on my conclusions above at [50] and [58], I am satisfied that the Proposed Development does not comply with the provisions of cl 56 of WLEP.

Is the Proposed Development consistent with the provisions of cl 58, concerning the protection of existing flora, and, in particular, has the Proposed Development been sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species?

1. The provisions of cl 58 of WLEP require that the Proposed Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.
2. The elements of the Proposed Development are identified above (at [6]) and its footprint in the context of the landscape setting of the Subject Lot is also illustrated above (at [6]).
3. I also note that the Applicant's proposed dwelling and associated landscaping and stormwater management arrangements press close to the location of the rocky outcrops on the Subject Lot and immediately to the north of the Applicant's proposed dwelling, landscaping and stormwater management works,
4. I note further that the scale of the proposed dwelling and its associated works, which require that the Proposed Development extend close to the rocky outcrops on the Subject Site, also requires the establishment of APZs that necessitate the clearing vegetation on those rocky outcrops.
5. I acknowledge, as summarised by the Applicant at par 30 of its closing submissions, the measures applied by the Applicant to minimise the impact of its Proposed Development. These measures have been complemented by the adoption of recommendations from certain experts to further minimise impacts, including in relation to landscape design features that would retain existing understorey vegetation and retain certain trees on the Subject Lot.
6. While I acknowledge that the Applicant has sought to avoid and minimise the potential impacts of its Proposed Development at the scale it has proposed, I concur with the agreed evidence of the Parties landscape experts (see above at [48(4)(b)(ii)]) that "an alternative architectural design (smaller) would generate less impacts".
7. Notwithstanding my observation above (at [65]), I note that the terms of cl 58 of WLEP are such that the development is required to be "sited and designed to minimise the impact on remnant indigenous flora".
8. While, as previously noted, a smaller development would inevitably reduce further the potential impacts of the development, the Applicant has demonstrated that the Proposed Development includes features that seek to minimise potential impacts remnant indigenous flora.
9. Consequently, I am unable to conclude that the Proposed Development is in breach of cl 58 of WLEP, and so must conclude that it complies with that clause of WLEP.

Is the Proposed Developmentconsistent with the desired future character of the areas, as described in the B2 Oxford Falls locality statement?

1. The DFC statement for the B2 Oxford Falls locality was provided above (at [17(4)]), and the terms of cl 12(3) of WLEP are that the Proposed Development is to be consistent with the statement.
2. The Court has previously considered the interpretation of the term 'consistency' in planning law and the Respondent drew the Court's attention to judgments including that of Biscoe J in Addenbrooke Pty Lty v Woollahra Municipal Council [2008] NSWLEC 190 and in which (at [45]), His Honour observed: "…. The definition of "consistent" in the Macquarie Dictionary (third edition) is: "agreeing or accordant; compatible; not self-opposed or self-contradictory". In a similar context to the present it has been said that "consistent" means not antipathetic: Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 at [27] and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 at [264], both decisions of Pearlman CJ. In Gillespies v Warringah Council (2002) 124 LGERA 147 at [70], [74] Bignold J considered that the word "consistent" is not confined to the notion of the proposed development not being antipathetic and is synonymous with compatible. I agree."
3. I have already noted above (at [53]) the frequently cited meaning of compatibility per Roseth SC in Project Venture.
4. I adopt the interpretation of consistency as explained by Biscoe J, such that consistency requires that a proposal be compatible with, or not antipathetic to, the relevant requirements of WLEP. Further, relying on Roseth's interpretation of compatibility in Project Venture, the development should be "capable of existing together in harmony" with its context.
5. The DFC statement identifies a number of factors with which the Proposed Development should be consistent, and these can be expressed as requiring resolution of the following subservient questions to the principle question identified above: 1. does the Proposed Development conform with the housing density standards set out in the DFC or is it for a low intensity, low impact use? 2. is the Proposed Development located on a ridgetop or in a place that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway? 3. will the Proposed Development enhance or protect the natural landscape including landforms and vegetation? 4. are buildings within the Proposed Development, including the associated works such as access roads and services, located and grouped in areas that will minimise disturbance of vegetation and landforms? 5. have the buildings within the Proposed Development been designed to blend with the colours and textures of the natural landscape? 6. does the Proposed Development retain or establish a dense bushland buffer along Forest Way and Wakehurst Parkway? 7. does the Applicant's proposed fencing detract from the landscaped vista of the streetscape? 8. will the Proposed Development create siltation or pollution of Narrabeen Lagoon and its catchment? 9. will the Proposed Development ensure that ecological values of natural watercourses are maintained?
6. I will address each of these subservient questions in turn, and in doing so I note that, from a planning perspective, and subject to the imposition of conditions to reflect the agreements identified in their joint report, the Parties' expert planners agreed that the Proposed Development was consistent with the DFC for the B2 Oxford Falls Valley locality in WLEP.

Is the Proposed Development for a new detached style housing conforming with the housing density standards set out in the DFC or is it for a low intensity, low impact use?

1. The Proposed Development is for a new detached house that conforms with the housing density standards applicable to development in the B2 area.
2. The Respondent had submitted that in addition to being a detached house, the Proposed Development should also be a low intensity, low impact use. However, I do not agree with this submission because: 1. the provisions of cl 12 of WLEP require, inter alia, that development be limited to new detached style housing conforming with the housing density standards set out in the DFC and low intensity, low impact uses; 2. in my reading of the text in cl 12, the purpose of the clause: 1. is to permit low intensity, low impact uses of the land in addition to the potential use of land for a new detached house that conforms with the housing development standard, and 2. is not to require that a conforming detached housing must also be a low intensity and low impact use of the site.
3. Consequently, I conclude that the Proposed Development is responsive to this requirement of cl 12(3) of WLEP.

Is the Proposed Development located on a ridgetop or in a place that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway

1. The Proposed Development will not be located on a ridgetop.
2. The ridgetop and skyline above the Subject Lot is already occupied by housing in an area opposite to the Subject Site on Lady Penrhyn Drive, Supply Avenue and Golden Gove which is land zoned R2 Low Density Residential.
3. It was clear from the site view undertaken with the Parties that development on those streets will provide a backdrop to the Proposed Development, and I am satisfied that, given this backdrop, the Proposed Development will not disrupt the skyline when viewed from Narrabeen Lagoon and Wakehurst Parkway.
4. Consequently, I'm satisfied that the Proposed Development is consistent with this paragraph of the DFC statement.

Will the Proposed Development protect, and where possible enhance, the natural landscape including landforms and vegetation?

1. The DFC statement requires that the natural landscape, including landforms and vegetation, will be protected and, where possible, enhanced, by any Proposed Development.
2. Because the Subject Lot is occupied by undisturbed vegetation and natural rock outcrops, and the Proposed Development includes the clearing of 0.39 ha of that vegetation, a new dwelling house, which is consistent with the terms of the DFC statement, if approved, must result in the loss of at least some vegetation on the Subject Lot.
3. But, if a consent authority were to apply the terms of the B2 locality DFC statement literally, then, in the circumstances of the Subject Lot, the DFC would, in effect, create a prohibition on the carrying out of any development on the Lot. As already noted in this judgment, the provisions of cl 12(3) of WLEP state that nothing in a description of desired future character creates a prohibition on the carrying out of development.
4. Consequently, I conclude that the provisions of cl 12 and the DFC must be read such that the loss of some vegetation on the Subject Site, for the purpose of a permissible detached dwelling development, is not per se antithetical to the provisions of the DFC statement, and a development that proposes such a development can nevertheless be consistent with the DFC statement.
5. I note that the Parties' expert planners, in their joint expert report, had agreed that: "… a precautionary approach should be adopted for site works so that the conditions are able to sustain the DFC throughout the site preparation and civil works phase to prevent unnecessary 'collateral damage/impact creep' to the natural values of the site intended to be conserved in the form of rock outcrops, canopy trees, water quality and the EEC (swamp). This can be achieved by conditions to ensure adequate 'set-out', protective fencing/barriers, clear site markers, progress updates and sensitive site management (including perimeter trenching to avoid major trees)…."
6. The expert planners noted that, based on these proposed mitigation measures, the Proposed Development would address, to their satisfaction, the Respondent's contention that the Proposed Development would not protect or, where possible, enhance the natural landscape (including landforms and vegetation).
7. Having considered submissions of the Parties along with the evidence of their expert planners, I accept the conclusion of the Parties' expert planners that the Proposed Development is consistent with this aspect of the DFC, noting that the DFC only requires enhancement of the natural landscape "where possible", and otherwise the DFC requirement "to protect" the natural landscape should be read in the context provided above (at [85]).

Are buildings within the Proposed Development, including the associated works including access roads and services, located and grouped in areas that will minimise disturbance of vegetation and landforms?

1. Relying on my conclusions above (at [85] and [88]) and noting my findings in relation to cll 56 (see above at [55(1)]) and 58 (see above at [67]) of WLEP, I am satisfied that the buildings within the Proposed Development, including the associated works including access roads and services, are located such that they would minimise disturbance of vegetation and landforms as required by the DFC statement.

Have the buildings been designed to blend with the colours and textures of the natural landscape?

1. The Parties' expert planners agreed within their joint report that the colour and materials palette proposed by the Applicant are in keeping with the DFC of the B2 Oxford Falls Valley locality.

Does the Proposed Development retain or establish a dense bushland buffer along Forest Way and Wakehurst Parkway?

1. Neither the Subject Site or the Subject Lot have a direct relationship with Forest Way or Wakehurst Parkway, and the Proposed Development: 1. does not propose the removal of any bushland along Forest Way or Wakehurst Parkway; 2. will have no effect on bushland fronting either Forest Way or Wakehurst Parkway; 3. is not antipathetic to the requirement of the DFC statement concerning bushland along Forest Way and Wakehurst Parkway.

Does the proposed fencing detract from the landscaped vista of the streetscape?

1. The Respondent does not press a contention that the Applicant's proposed fencing in its amended plans detracts from the landscaped vista or streetscape, and I am satisfied the Proposed Development is consistent with this aspect of the DFC.

Will the Proposed Development create siltation or pollution of Narrabeen Lagoon and its catchment?

1. While the Respondent's expert stormwater engineer, Mr Helot, expressed some concern in relation to the risk profile to be assumed in association with the possible failure of the Applicant's proposed stormwater management system, he did not challenge the design effectiveness of that system, or that, if installed, it would achieve other than its designed outcomes in anticipated operating conditions.
2. On the basis of the evidence before me, and for the purposes of assessing the consistency of the Proposed Development with the DFC statement, I am satisfied that the Proposed Development would not create siltation or pollution of Narrabeen Lagoon and its catchment.

Will the Proposed Development ensure that ecological values of natural watercourses are maintained?

1. Consistent with my findings above in relation to the CUS and the Applicant's stormwater management system, if installed (see above at [41(3)] and [94]), I am satisfied that the Proposed Development will ensure that ecological values of natural watercourses are maintained.

Conclusion in relation to the consistency of the Proposed Development with the DFC statement

1. Based on the above considerations of the various subservient questions concerning he elements of the DFC statement, I conclude that the Applicant's Proposed Development is consistent with the DFC for the B2 Oxford Falls Valley locality.

Conclusions in relation to the Respondent's contentions

1. On the basis on my conclusion above (at [24]), and notwithstanding my conclusions concerning the compliance of the Proposed Development with the provisions of cl 58 of WLEP (see above at [68]), and its consistency with the DFC for the B2 Oxford Falls Valley locality (see above at [96]), I have concluded that the Proposed Development should not be approved because it does not satisfy the provisions of cl 56 of WLEP for the reasons provided above (at [59]).

Orders

1. The orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA2021/2039 seeking consent for construction of a detached dwelling house at 70A Willandra Road, Narraweena is determined by way of refusal; 3. The exhibits are returned, with the exception of Exhibits A and 2.

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